United Kingdom House of Lords Decisions

LORD BRIDGE OF HARWICH

"It seems clear that his defence had been prejudiced. I therefore consider the finding of guilt unsafe and 1 have decided to exercise the Secretary of State's power under Prison Rule 56(1) to remit the punishment made against Mr. Leech."

"Prison Rule 56(1) does not give the Secretary of State any power to quash a finding of guilty; that power rests with the courts. The recording system does not allow the removal of entries from a prisoner's record but these will be annotated as appropriate, to show a not guilty finding, and any action taken by the Secretary of State under Prison Rule 56(1) or by the courts to quash a finding."

(Their Lordships will indicate what Order they would propose to make.)

[N.B.] Orders for Legal Aid taxation will be made]

appellant presented a petition and a supplementary petition to the Secretary of State. The substance of both petitions alleged procedural impropriety in the conduct of the proceedings in that the appellant had not been allowed to call as witnesses either his wife or any of the 18 fellow prisoners present in the visiting room at the time of the alleged offence. On 11 and 13 March 1987 the Secretary of State replied separately to the two petitions through the prison governor. He stated, in the first reply:

"He is satisfied that the adjudication beginning on 31 December 1986 was conducted fairly and that the governor took into account all the relevant evidence in reaching his decision."

"The record of the hearings shows that you made no request to call your wife as a witness. The Secretary of State can find no grounds for altering his earlier decision not to interfere with the governor's finding at the adjudication."

"[Officers of the Secretary of State duly authorised in that behalf] shall visit all prisons and examine the state of the buildings, the conduct of officers, the treatment and conduct of prisoners and all other matters concerning the management of prisons, and shall ensure that the provisions of this Act and of any rules made under this Act are duly complied with."

"(1) The Secretary of State may 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.

(2) 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."

"(1) The Secretary of State may remit a disciplinary award or mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe.

(2) Subject to any directions of the Secretary of State, the governor may remit or mitigate any award made by a governor and the board of visitors may remit or mitigate any disciplinary award.

The first attempts to challenge awards made in proceedings for offences against prison discipline by application for orders of certiorari were made following a riot at Hull prison in 1976. A number of prisoners against whom the board of visitors had made awards of loss of remission for substantial periods complained that the proceedings against them were vitiated by breaches of the rules of natural justice. The cases came before the Divisional Court (Lord Widgery C.J., Cumming-Bruce L.J. and Park J.) who held that they had no jurisdiction to entertain the applications: Reg, v. Board of Visitors of Hull Prison, Ex parte St. Germain [1978] Q.B. 678. Lord Widgery C.J., with whom the other members of the court agreed, drew attention to the many features of a disciplinary award which appeared apt to attract the jurisdiction, but discerned, at p. 690:

"an exception . . . which prevents certiorari from going even though the circumstances otherwise appear entirely suitable and appropriate for it. That exception is where the order under challenge is an order made in private, disciplinary proceedings where there is some closed body, and a body which enjoys its own form of discipline and its own rules, and where there is a power to impose sanctions within the scope of those rules donated as part of the formation of the body itself."

"The principle there that domestic discipline in the form of a discplinary body is something for the officer charged with the duty of maintaining discipline and not something for the courts is a principle which, in my judgment, we should adhere to and not allow to be wasted away. It is in no way inconsistent with the general approach to certiorari. It sets aside these particular situations of disciplinary bodies and would, and does in my judgment, open the way to refusing certiorari when an order of such a disciplinary body is under review.

"At first I thought this was a principle which would apply only to the governor. I saw the governor equated with the commanding officer of the regiment in Lord Goddard C.J.'s judgment, and it was not until the argument had progressed some way that it seemed to me right that we should include in this principle the board of visitors. The reason why I think it is right to include them is because I think that when they are sitting as a disciplinary body they are part of the disciplinary machinery of the prison. I reject entirely any suggestion that the governor's decision should be the subject of certiorari, and I cannot see myself how, if the governor is left out, the board of visitors can be put in."

"To my mind, contrary to the submission put forward by the board of visitors in their respondents' notice, while the board of visitors have numerous other functions connected with the administration of the prison, their function in acting as a judicial tribunal in adjudicating on charges of offences against discipline, and in making awards consequent on findings of guilt, is properly regarded as a separate and independent function, different in character from their other functions. It is materially different, in my judgment, from the function of the governor in dealing with alleged offences against discipline. While the governor hears charges and makes awards, his position in so doing corresponds to that of the commanding officer in military discipline or the schoolmaster in school discipline. His powers of summary discipline are not only of a limited and summary nature but they are also intimately connected with his functions of day-to-day administration. To my mind, both good sense and the practical requirements of public policy make it undesirable that his exercise of that part of his administrative duties should be made subject to certiorari. But the same does not apply to the adjudications and awards of boards of visitors who, to quote from Mr. Beloff's alternative submission on this part of the case, 'are enjoined to mete out punishment only after a formalised inquiry and/or hearing.¹ It may be difficult to define the distinction as a strict matter of logic. But I think that, as a matter of proper practical application of the law in the general interest, not forgetting the legitimate interest of prisoners, that is where the line should be drawn, in respect of this 'private law' disciplinary machinery. I think that, after giving full weight to all that has been said and done over recent years affecting the extension of the scope of the remedy of certiorari, there is nothing in existing law which requires us to decline to draw that line of distinction."

"Nevertheless I find it difficult to visualise any circumstances in which certiorari would lie against the governor. His decisions are an intimate part of the disciplinary system of the prison. At the lowest level discipline is maintained in accordance with rule 2. It is the face-to-face discipline which is maintained by the prison officer on the landing, in the prison yard or in the prison workshops. Example and leadership are required, and such firmness as may be necessary. It is only when this level of control fails in some way that the governor is brought into the picture. Rule 47 sets out 21 specific offences against discipline of varying degrees of seriousness. Every charge has first to be inquired into not later than the next day after it is laid (other than a Sunday or public holiday) (see rule 48(4)) and no doubt in the majority of the less serious offences is disposed of. I agree with the passage from the judgment of Lord Widgery C.J. which I have already quoted in which he emphasises the importance of the officer charged with maintaining discipline not being interfered with by the courts."

"I have left until last the suggestion that it is difficult to distinguish between the governor and the board of visitors because it is a matter which I have already briefly considered. I do not find the distinction difficult to make. The governor is an essential part of the organisation of discipline in the prison Discipline is his responsibility at all times. He is at the head of the disciplinary pyramid, and being at the head there is a greater degree of formality. His position is strictly comparable with the commanding officer of a service unit. Boards of visitors hold the balance between the governor and the internal discipline of the prison and the prisoner himself and, when sitting, can be regarded as 'an impartial and independent authority.¹"

Reg. v. Deputy Governor of Camphill Prison, Ex parte King came first before the Divisional Court (Kerr L.J. and Glidewell J.) on 22 March 1984. Their decision is unreported. The appellant prisoner complained that his conviction of a disciplinary offence by the deputy governor was based on a misconstruction of the rule under which he was charged. The judgments in the Divisional Court concurred in dismissing the application on the ground that there had been no misconstruction of the rule, but differed on the issue of jurisdiction. Kerr L.J., in a carefully reasoned judgment, from which I forebear to quote only for the sake of brevity, could see no difference in principle between adjudications and awards by boards of visitors and governors to justify a distinction between the right to judicial review of awards by boards of visitors on the one hand and a total denial of the right in relation to awards by governors on the other. Glidewell 3. took the opposite view, agreeing with Megaw and Waller L.JJ in St. Germain's case [1979] Q.B. 425. He said:

"As to the nature of the governor's decision and the process by which he makes it, it is self-evident that in a prison the maintenance of good order and discipline is of fundamental importance. It follows in my view that when the governor is holding an inquiry into and adjudicating upon a disciplinary offence, he is exercising a part of his overall function of governing the prison, not a separate and distinct function. In this way, his exercise of the powers of summary discipline can be distinguished from the exercise by the board of visitors of their judicial function."

"In my judgment, a prison governor is nothing more than a manager appointed by and answerable to the Secretary of State. Those whom he is managing have to behave properly towards those with whom they come into contact, to do as they are told and when they are told and to conform to the standing orders in the prison. This is an essential aspect of all managements, whether it be management of a factory, an office or a school. Management without discipline is a recipe for chaos. For a prison governor, however, the ultimate sanction used in industry, commerce and schools, namely, dismissal, is not available. There is need for other sanctions. Rule 50 of the Rules of 1964 says what they are. In my judgment, the powers given to the governors of imposing disciplinary awards for offences against discipline are necessary for the proper and efficient discharge of their duties as managers. All prisons are likely to have within them a few prisoners intent on disrupting the administration. They are likely to have even more who delude themselves that they are the victims of injustice. To allow such men to have access to the High Court whenever they thought that the governor abused his powers, failed to give them a fair hearing or misconstrued the prison rules would undermine and weaken his authority and make management very difficult indeed. In prisons, as in the armed services, those who have grievances can, and should, follow the way laid down for getting them dealt with. Prisoners can make complaints to the visiting committee or board of visitors (see rule 95) and petition the Secretary of State. If a prisoner has a well-founded complaint that a governor has misconstrued a prison rule and the Secretary of State has rejected his petition inviting attention to the misconstruction, he may be entitled to apply for judicial review of the Secretary of State's decision, the relief being in the form of a declaration as to what is the correct construction.

"The governor's position is very different from that of the board of visitors. They have no managerial functions. They do not have to maintain discipline from day to day. They are an independent and impartial body whose function in relation to disciplinary offences is essentially judicial. Such judicial functions as a governor has are but one aspect, and a minor one, of his managerial functions. It would be difficult to separate his judicial functions from his management ones without impairing his ability to discharge the latter. In my judgment, as a matter of common sense and public policy the court should not try to do so."

"The Court of Appeal, now with the approval of the House of Lords, has already extended judicial review to the disciplinary proceedings of the board of visitors. I see the force of the argument that it is a necessary logical extension of the jurisdiction that it should also embrace disciplinary proceedings before the governor, who is adjudicating upon the same code of discipline albeit with lesser powers of punishment, and who also derives his authority to do so from the same statutory instrument, namely, the Prison Rules 1964.

"But the common law of England has not always developed upon strictly logical lines, and where logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society.

"I can think of no more difficult task in contemporary society than that of managing and maintaining discipline in our seriously overcrowded prisons, nor a task more dependent upon the personal authority of the incumbent. I am convinced that we should make it very much more difficult to carry out that task if the authority of the governor is undermined by the prospect of every disciplinary award being the subject of potential challenge in the courts. I say 'every disciplinary award' because if judicial review is to be available I cannot see how it could be restricted to cases of loss of remission as was suggested at one point in the argument. I appreciate that if the jurisdiction was extended to include governors' awards the court, in its discretion, would refuse to entertain frivolous and unmeritorious applications, but that would not stop the applications being made, and until the court had given its ruling a question mark would hang over the governor's award and to that extent, and I think a serious extent, his authority would be undermined. Nor would it be an easy matter to winnow out all the unmeritorious applications, and I have little doubt that many would squeeze through the net only to be exposed as a result of a full hearing.

"I wish I could find a logical way in which to distinguish between governors and boards of visitors, but I have not been able to do so and I think at the end of the day I must content myself by pointing to some of the differences that justify a different approach.

"Although both the board of visitors and the governors are administering the same disciplinary code the adjudication process is necessarily very different. The board of visitors are entirely independent. In ail probability they do not know the prisoner, or if they do, not nearly as well as the governor. They are dealing with more serious offences than the governor and their powers of punishment are very much greater. More formality will attend their proceedings and they have a discretion to allow legal representation; whereas the speed with which a governor is required to deal with matters under the disciplinary code-see rule 48(4)-shows that legal representation before a governor cannot have been contemplated. The proceedings before a board of visitors is closely analogous to a hearing before a court, whereas the hearing before a governor is more analogous to coming before a commanding officer or headmaster. Judicial review goes to review the decision of an inferior court but not to review that of the commanding officer or headmaster.

"If a governor was a law unto himself it would be a powerful reason for having judicial review available to curb any excess or abuse of his powers. But the governor is not a law unto himself, he is appointed by and responsible to the Secretary of State for the Home Department ."

"In these circumstances the court should, in the first instance, be prepared to assume that the Secretary of State will discharge the duty placed upon him by Parliament to ensure that the prison governor is doing his job properly. If it is shown that the Minister is not discharging this duty and allowing a prison governor to disregard the prison rules then judicial review will go to correct that situation by requiring the Minister to perform his statutory duty. I regard this as the route by which the court in the present case could legitimately have been called upon to construe rule 47(7). If the prisoner had petitioned the Secretary of State and made clear that his complaint was that he had lost remission because the governor. had wrongly construed the rule it would have been the duty of the Secretary of State to consider the construction of the rule. If the Secretary of State had then misconstrued the rule and thus rejected the petition it would then have been open to the prisoner to seek judicial review of the Secretary of State's decision on the ground that he had rejected his petition because he had misdirected himself in law.

"Thus it seems to me there is a route open to a prisoner to seek redress from the court if he suffers injustice as a result of the misconstruction of the prison rules without having to resort to extending judicial review to the decisions of prison governors. I am therefore satisfied that no substantial injustice will be suffered by prisoners in refusing to extend judicial review to governors' decisions which is a factor that naturally weighs very heavily with me in deciding that judicial review should not be so extended."

"I, too, can see no logical distinction between the disciplinary functions of prison governors and the disciplinary functions of boards of visitors which the House of Lords has held are subject to judicial review. On the other hand, the practical repercussions of holding that the disciplinary decisions of prison governors are subject to review by the courts are frightening. It would be to shut one's eyes to reality to ignore the fact that, if prisoners are able to challenge in the courts the disciplinary decisions of the governor, they are likely to try to do so in many, often unmeritorious, cases and the maintenance of order and discipline in prisons is likely to be seriously undermined.

"I have found the resolution of this conflict in a point first raised by Griffiths L.J. during the hearing of the appeal and which was not argued in the Divisional Court. By section 4(2) of the Prison Act 1952 Parliament imposed on the prison commissioners the duty to ensure that the provisions of the Act and any rules made under it are complied with. On the dissolution of the prison commissioners on 1 April 1963 this duty became vested in the Secretary of State for the Home Department. Parliament has therefore by express enactment imposed on someone other than the courts a specific obligation to ensure compliance with the statutory provisions. In my judgment, where Parliament has so provided it would not normally be appropriate for the court to take jurisdiction to ensure compliance with such statutory provisions, at least in cases where the person entrusted with the duty has adequate powers to ensure that the statutory provisions are in fact complied with."

In the Northern Ireland case of Reg. v. Governor of the Maze Prison, Ex parte McKiernan, an application by a prisoner for judicial review of a prison governor's award, the question of jurisdiction was decided as a preliminary point. Gibson L.J., at first instance, followed King's case [1985] Q.B. 735 and held that there was no jurisdiction. This decision was reversed by the Court of Appeal (Lord Lowry C.J. and O'Donnell L.J.) on 15 June 1985. The judgments are unreported and are of some length. As I agree both with the conclusion and with the substance of the reasoning in these judgments, but intend to express my own reasons for reaching the same conclusion in my own words, I shall not still further lengthen this review of conflicting authorities by citing or attempting to summarise the judgments of the Court of Appeal in Northern Ireland.

"However, in my judgment, there is a substantial difference between decisions of governors on the one hand and boards of visitors on the other. Although, as Kerr L.J. has demonstrated, there is no material difference between their functions in relation to disciplinary offences, their relationship to the Secretary of State is quite different. Governors, as servants or agents, are bound to comply with the directions of the Secretary of State, who therefore has power to ensure compliance by them with the statutory provisions. Boards of visitors, on the other hand, are not the servants or agents of the Secretary of State but are independent. So far as I can see, although the Secretary of State has power to remit a disciplinary award made by the board of visitors he has no other power to ensure that they act in accordance with the statutory provisions. Therefore, Parliament not having provided adequate powers to enable the Secretary of State to ensure compliance by the board of visitors with their statutory obligations, the court must intervene if the observance of those statutory obligations is to be enforced."

"The Secretary of State may require any charge to which this rule applies to be referred to him, instead of to the board of visitors, and in that case an officer of the Secretary of State (not being an officer of a prison) shall inquire into the charge and, if he finds the offence proved, make one or more of the awards listed in paragraph (4) of this rule."

LORD FRASER OF TULLYBELTON

LORD BRANDON OF OAKBROOK

LORD ACKNER

LORD OLIVER OF AYLMERTON

"Rules made as aforesaid shall prescribe the functions of visiting committees and boards of visitors and shall among other things require members to pay frequent visits to the prison and hear any complaints which may be made of the prisoners and report to the Secretary of State any matter which they consider it expedient to report; and any member of a visiting committee or board of visitors may at any time enter the prison and shall have free access to every part of it and to every prisoner."

"48.(1) Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible. (2) A prisoner who is to be charged with an offence against discipline may be kept apart from other prisoners pending adjudication. (3) Every charge shall be inquired into in the first instance, by the governor. (4) Every charge shall be first inquired into not later, save in exceptional circumstances, than the next day, not being a Sunday or public holiday, after it is laid. 49.(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 any 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."

"(3) Where a charge is referred to a committee or board under this rule, the Chairman thereof shall summon a special meeting at which not more than five nor fewer than two members shall be present. (4) The board so constituted shall inquire into the charge and, if they find the offence

proved, shall make one or more of the following awards: . .

"

.."

"(1) The Secretary of State may remit a disciplinary award or may mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe. (2; Subject to any directions of the Secretary of State, the governor may remit or mitigate any disciplinary award.

"To my mind, contrary to the submission put forward by the board of visitors in their respondents' notice, while the board of visitors have numerous other functions connected with the administration of the prison, their function in acting as a judicial tribunal in adjudicating on charges of offences against discipline, and in making awards consequent on findings of guilt, is properly regarded as a separate and independent function, different in character from their other functions. It is materially different, in my judgment, from the function of the governor in dealing with alleged offences against discipline. While the governor hears charges and makes awards, his position in so doing corresponds to that of the commanding officer in military discipline or the schoolmaster in school discipline. His powers of summary discipline are not only of a limited and summary nature but they are also intimately connected with his functions of day-to-day administration. To my mind both good sense and the practical requirements of public policy make it undesirable that his exercise of that part of his administrative duties should be made subject to certiorari."

"Nevertheless I find it difficult to visualise any circumstances in which certiorari would lie against the governor. His decisions are an intimate part of the disciplinary system of the prison. At the lowest level discipline is maintained in accordance with rule 2. It is the face-to-face discipline which is maintained by the prison officer on the landing, in the prison yard or in the prison workshops. Example and leadership are required, and such firmness as may be necessary. It is only when this level of control fails in some way that the governor is brought into the picture. Rule 47 sets out 21 specific offences against discipline of varying degrees of seriousness. Every charge has first to be inquired into not later than the next day after it is laid (other than a Sunday or public holiday) (see rule 48(4)) and no doubt in the majority of the less serious offences is disposed of. I agree with the passage and the judgment of Lord Widgery C.J. which I have already quoted, in which he emphasises the importance of the officer charged with maintaining discipline not being interfered with by the court. The important question that we have to consider, however, is whether this principle extends to boards of visitors."

"Now the rights of a citizen, however circumscribed by a penal sentence or otherwise, must always be the concern of the courts unless their jurisdiction is clearly excluded by some statutory provision. The courts are in general the ultimate custodians of the rights and liberties of the subject, whatever his status and however attenuated those rights and liberties may be as the result of some punitive or other process. Although rule 7(1) impliedly enables a prisoner to petition the Secretary of State in respect of some grievance or deprivation, there is nowhere in the Act of 1952 or the rules made under it, any indication that such rights, however attenuated, as he may still possess are not cognisable in a court of law. Once it is acknowledged that such rights exist the courts have function and jurisdiction. It is irrelevant that the Secretary of State may afford redress where the rules have been infringed or their application has been irregular or unduly harsh. An essential characteristic of the right of a subject is that it carries with it a right of recourse of the courts unless some statute decrees otherwise. What should be the nature and measure of the relief accorded must be a matter for the courts. Public policy or expediencey as well as merits may be factors to consider and they may influence the answer to any application for relief; but to deny jurisdiction on the grounds of expediency seems to me, with all respect to the views expressed in the judgment of Lord Widgery C.J. in the Divisional Court [1978] Q.B. 678, to be tantamount to abdicating a primary function of the judiciary."

"It may be inexpedient or perhaps stultifying in relation to prison discipline that recourse to the courts should be available to a prisoner who advances some capricious complaint as to the manner in which he has been disciplined. There are no finite limits to the extent of the jurisdiction of the High Court in this regard. The practical limits are sought in the exercise of the power to grant relief which is always a matter of discretion . . . ."

"It is readily understandable that discipline in a prison may be weakened if its exercise can be challenged in the courts; but until Parliament chooses to enact that the proceedings of a board of visitors in their disciplinary function, however conducted, shall be free from supervision or control by the High Court, the scope of their inherent jurisdiction must, in my view, include such proceedings. I do not for my part find it easy, if at all possible, to distinguish between the disciplinary proceedings conducted by a board of visitors and those carried out by a prison governor. In each case the subject-matter may be the same; the relevant fundamental regulations are common to both forms of proceeding. The powers of a governor as to the award he can make (which really means the punishment he can impose) are more restricted than those of a board of visitors in a corresponding situation; but the essential nature of the proceedings as defined by the Prison Rules is the same. So, in nature if not in degree, are the consequences to a prisoner."

"As to the nature of the governor's decision and the process by which he makes it, it is self-evident that in a prison the maintenance of good order and discipline is of fundamental importance. It follows in my view that when the governor is holding an inquiry into and adjudicating upon a disciplinary offence, he is exercising a part of his overall function of governing the prison, not a separate and distinct function. In this way, his exercise of the powers of summary discipline can be distinguished from the exercise by the board of visitors of their judicial function."