Judicial Review and Prison Governors
| Published date | 01 May 1985 |
| Author | Sandy Ghandhi |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00844.x |
| Date | 01 May 1985 |
348
THE
MODERN
LAW
REVIEW
[Vol.
48
For the immediate future, at least, it seems likely that the courts’
sympathy for-and perhaps identification with-the confused new
user will lead them to prefer the user’s evidence in cases like this.
If
so,
even the trend towards a greater degree of “explicit,
unambiguous and complete” written contracts,” displayed by some
suppliers since the MacKenzie Patten decision, could prove
insufficient. What seems to face computer companies is a business
decision to accept that this risk is attached to the market in which
they are competing, and that they will have, from time to time, to
pay up gracefully. ANNE
STAIN=*
JUDICIAL REVIEW
AND
PRISON GOVERNORS
IN
R. v. Deputy Governor
of
Camphill Prison, ex
p.
King,’ the
Court of Appeal held that, although a deput governor had
was not open to judicial review. In such
a
case, the proper course
for prisoners is to petition the Home Secretary. Lawton L.J. put
the matter thus:
“If a prisoner has a well-founded complaint that a overnor
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 precise ratio of the decision is somewhat difficult to discern,
since all three judges gave rather different reasons as their principal
ground for refusing judicial review. The main thrust
of
the
argument, advanced by counsel for Mr. King, was that since the
decision of the Court of A peal in
R.
v.
Hull
Prison Board
of
Visitors,
ex
p.
St.
Germain,Pholding that adjudications by boards
of visitors on disciplinary offences under the Prison Rules
1964
were subject to judicial review, had been approved of by the
House of Lords in O’Reilly
v.
Ma~krnan,~ logic demanded a similar
conclusion in relation to similar adjudications made by prison
governors.
In a typically robust judgment, Lawton L.J. declared the
elemental principle to be that: “[tlhe courts are not concerned with
supervising the exercise of statutory powers
of
management but
with preventing the misuse of public law.” Accordingly, the crucial
point to resolve was “whether a prison governor, when making an
*I
As
required by the British Computer Society’s Code of conduct.
Faculty of Professional Studies, Newcastle upon Tyne Polytechnic.
I
am grateful
to
’
19841 3
All
E.R. 897. Judgment
was
delivered on July 31, 1984. Leave
to
appeal to
misconstrued Rule
47(7)
of the Prison Rules
1964,
zy
his adjudication
has misconstrued
a
prison rule and the Secretary of
8
tate has
my friend and colleague L. A. Rutherford, for helpful comments on an earlier draft.
House
of Lords
has
dismissed a petition by the applicant for leave to appeal.
the
Ir
ouse
of
Lords
was
refused
by the Court
of
Appeal. The Appeal Committee of the
S.I.
1984 No.
388.
’
1979 1
All
E.R. 701. Noted at (1979) 42 M.L.R.
467.
‘
11982j 3 All E.R. 1124. Noted at (1983)
46
M.L.R.
645.
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