A solicitor from Purcell Parker’s prison department recently represented two prisoners before the Independent Adjudicator at HMP Prison Birmingham.

The hearing concerned the cases of two prisoners (Mr M and Mr S) who had both been charged with a disciplinary offence contrary to the Prison Rules 1999 after traces of a drug were found in their urine. The cases of the two prisoners were unconnected, however both men raised the same defence, namely that they had not consumed any drug and that the reason for their positive drug test must have been that they had absorbed the drug through passive smoking.

Due to this, the District Judge and Independent Adjudicator decided to hear the two cases at the same time as both involved calling on the evidence of the same expert witnesses to give their opinions on identical issues.

As well as inviting three expert witnesses to the adjudication hearing, the District Judge also invited a representative from the Prison Service, who took the view that their presence was unnecessary.

The prisoners’ defence

On the day of the hearing Purcell Parker’s prison solicitor assessed that Mr M was not well enough to attend, however she was happy for the District Judge to hear the expert evidence and legal argument in his absence.

Mr S told the District Judge that he had never smoked drugs during his time at HMP Birmingham. However, in the five months he had been held at the prison he had shared a cell in the Victorian B Wing with five different cell mates, each of whom smoked the synthetic cannabinoid known as mamba all day in the cell. Mr S added that the regime on B Wing means he spends around 20 hours a day in his cell with his cell mate. He also described how his cell window does not open and that the mechanism for opening and closing the ventilation hole is broken.

Mr S also said that it is not possible to say whether mamba or other drugs are being smoked as the usual practice is to smoke them in a torn page from a bible mixed with tea from a tea bag as the strong smell of the tea masks the smell of the drug. Also, he said that although staff are supposed to stop prisoners from smoking, you can always smell cannabis or tea bags on the wing. Mr M had been due to say that synthetic cannabinoids are also consumed in vape pens in the prison and that the smell can be masked by one of the seven flavours available to buy in the canteen.

A prison-wide problem

In support of the prisoners’ claims about the extent of the drug problem in HMP Birmingham, Purcell Parker’s prison solicitor drew the District Judge’s attention to the Urgent Notification published by the Chief Inspector of HM Inspectorate of Prisons on 16th August 2018. This report states:

‘We saw many prisoners under the influence of drugs and the smell of cannabis and other burning substances pervaded many parts of the prison. Testing suggested a third of the prisoners were using illicit drugs and half the population thought drugs were easy to obtain. One in seven said they had developed a problem with illicit drugs since they had been in Birmingham. Our own observations confirmed to us that the use and trafficking of illegal substances was blatant. I have inspected many prisons where drugs are a problem, but nowhere have I felt physically affected by the drugs in the atmosphere – an atmosphere in which it was clearly unsafe for prisoners and staff to live and work. In the light of this, it was shocking that many staff did not seem to be prepared to tackle the drugs misuse.’

Due to this, the District Judge concluded that there were ‘proper grounds’ for Mr S’s and Mr M’s accounts of being allocated cells where prisoners were able to ‘regularly and persistently’ abuse synthetic cannabinoids. This meant that any necessary legal requirement for the prisoners to show that passive smoking was a real possibility was satisfied.

The experts’ opinion

After citing several relevant studies on Synthetic Cannabinoid Receptor Agonists (SCRA) to back up their opinions, two experts concluded that it was ‘unlikely’ that Mr S’s reading of 7ng/ml would have been caused by passive smoking and that it was ‘extremely unlikely’ that this would have been the case for Mr M whose reading was 16ng/ml. However, in the absence of any definitive scientific evidence to determine SCRA reading levels for passive smoking, each said it was possible in both cases.

The independent forensic scientist instructed on behalf of the prisoners agreed with the opinions of the two other witnesses, also observing that the scientific evidence was not currently strong enough to take any proper view on the appropriate cut off level to determine passive smoking.

Interpreting the law

Finally, the District Judge asked for Purcell Parker’s solicitor’s input on the correct interpretation of the law the prisoners had been charged under, in order for him to be able to make a fair judgement.

The two prisoners were charged under paragraph 51(9) of the Prison Rules 1999, which relates to a substance being detected in urine which demonstrates that a specified drug has been administered to the person in question either by themselves or by another person. Our solicitor stated that the word ‘administer’ means ‘giving’ or ‘applying’ something or ‘taking responsibility for giving it’, citing the definition in the Oxford English Dictionary and a previous manslaughter case where the court discussed what the word ‘administer’ meant in the context of giving a drug that caused a death.

After listening to this, the District Judge concluded that the word ‘administer’ means causing a drug to enter the body by a deliberate act. Therefore, in the case of passive smoking, neither the cell mate who is smoking the drug nor the accused who is breathing the air around him can be said to be ‘administering’ the drug.

The conclusion

The District Judge’s interpretation of the law, based on our solicitor’s assertion that the word ‘administered’ did not include passive smoking, meant it was now the prison’s responsibility to satisfy him that the positive readings could not be attributed to passive smoking. As we have seen, the Prison Service was not represented, a decision which the District Judge later described as ‘most unhelpful’ in his report.

This, in combination with the fact that the expert witnesses did not rule out the possibility of passive smoking causing the positive test results, meant that the District Judge was not satisfied that the readings were not caused solely by passive smoking. As a result, both cases were dismissed.

Not only that, in the absence of scientific evidence to provide a reading at which passive smoking of synthetic cannabinoids can be successfully ruled out, the District Judge stated that it will be impossible to successfully prosecute any charge under paragraph 51(9) for SCRA in HM Prison Birmingham or any prison with similar drug problems until the drug problem identified in the HM Inspectorate of Prisons’ report is properly addressed.

First class legal defence for prisoners

Our prison law solicitors are highly-regarded specialists in their field. No matter whether the case is a prison disciplinary matter or a High Court appeal case, our team’s empathetic approach and extensive experience can secure the best possible outcomes for clients in custody. To find out more, please call us on 0121 236 9781.