Leech v Deputy Governor of Parkhurst Prison; Prevot v Deputy Governor of Long Lartin Prison
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Fraser of Tullybelton,Lord Brandon of Oakbrook,Lord Ackner,Lord Oliver of Aylmerton |
| Judgment Date | 04 February 1988 |
| Judgment citation (vLex) | [1988] UKHL J0204-2 |
| Date | 04 February 1988 |
| Court | House of Lords |
[1988] UKHL J0204-2
Lord Bridge of Harwich
Lord Fraser of Tullybelton
Lord Brandon of Oakbrook
Lord Ackner
Lord Oliver of Aylmerton
House of Lords
My Lords,
These two appeals raise the important question whether the court has jurisdiction to entertain an application for judicial review of an adjudication by a prison governor on a charge against a prisoner of a disciplinary offence and an award of punishment for the offence under the Prison Rules 1964 (S.I.64 no. 388). The Court of Appeal in Reg. v. Deputy Governor of Camphill Prison, Ex parte King [1985] Q.B. 735 held that there was no such jurisdiction. But the Court of Appeal in Northern Ireland took the opposite view in accepting jurisdiction to review a governor's adjudication and award under the corresponding rules applicable in Northern Ireland; ( Reg. v. Governor of the Maze Prison, Ex parte McKiernan 5 June 1985, unreported). This is the conflict which must be resolved.
The appellant Leech was serving a term of imprisonment for five years due to expire, apart from remission, on 9 May 1987. In March 1985 at Parkhurst Prison he was charged with an offence under rule 47(7) of the Rules of 1964. At an adjourned hearing on 16 April 1985 a deputy governor found the offence proved and awarded 28 days loss of remission. The appellant petitioned the Secretary of State on the ground of breaches of the rules of natural justice invalidating the adjudication. He also wrote to Lord Avebury, who took the case up with the Home Office. A letter from the Minister of State at the Home Office to Lord Avebury dated 25 June 1985 recorded that the ajudicating governor had found the appellant guilty before giving him any opportunity to make his defence or to cross-examine the reporting officer. The Minister of State added:
"It seems clear that his defence had been prejudiced. I therefore consider the finding of guilt unsafe and I have decided to exercise the Secretary of State's power under Prison Rule 56(1) to remit the punishment made against Mr. Leech."
A copy of this letter was sent to the governor of Parkhurst Prison on 3 July 1985 with instructions to inform the appellant and amend his record. The appellant was duly informed and his prospective release date was suitably amended, but the entry in his prison record relating to the adjudication and award remained unaltered.
On 8 October 1985 the appellant presented a further petition to the Secretary of State asking that the conviction for the disciplinary offence be removed from his record. A pro forma reply from the Home Office dated 23 December 1985 instructed the prison governor to inform the appellant as follows:
"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."
The appellant thereupon sought leave to apply for judicial review which was refused by Mann J. on 22 April 1986. On 10 September 1986 the Court of Appeal granted leave to apply, but refused the substantive application, as they were bound by King's case [1985] Q.B. 735 to do. It was not until 18 September 1986 that a note was entered on the appellant's prison record to the effect that the 28 days remission he had lost by the award in April 1985 had been "restored."
On 20 October 1986 the appellant was released from prison. On 6 November 1986 your Lordships' House granted leave to appeal. At the hearing of the appeal your Lordships were informed that the appellant Leech is now serving a further sentence of imprisonment imposed in July 1987.
The appellant Prevot was serving a term of imprisonment of 14 years due to expire, apart from remission, on 15 March 1997. On 30 December 1986 at Long Lartin Prison he was charged with an offence against good order and discipline under rule 47(20) of the Rules of 1964 in that "he was being masturbated by his female visitor." The lady visiting him was his wife. At an adjourned hearing on 7 January a deputy governor found the case proved and awarded 21 days loss of remission and six days exclusion from associated work. On 16 January and 10 February 1987 the 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."
He stated in the second reply:
"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."
The appellant sought leave to apply for judicial review of both the governor's and the Secretary of State's decisions. Leave was granted in respect of the Secretary of State's decision, but refused in respect of the governor's decision by Stuart-Smith J. on 18 March 1987. On 15 June 1987 the Court of Appeal granted leave to apply in respect of the governor's decision, dismissed the substantive application, but granted leave to appeal to your Lordships' House.
Before turning to the conflict of judicial opinion which your Lordships must now resolve it is necessary to consider the statutory regime for the conduct and management of prisons and, more specifically, for the punishment of offences by prisoners against discipline. The governing statute is still the Prison Act 1952. As originally enacted this statute vested powers of management of prisons in the Prison Commissioners, subject to the overall control of the Secretary of State. The Prison Commissioners were dissolved in 1963 and, by amendment of the statute, the powers formerly vested in them are now exercisable directly by the Secretary of State. In view of the importance attributed to it in the argument for the respondents I cite in full section 4(2) of the Act of 1952 which provides:
"[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."
The words in square brackets were substituted in 1963 for the words "The Prison Commissioners [The Prison Commissioners Dissolution Order 1963 ( S.I. 1963 No. 597)]."
The Act of 1952 itself makes no direct provision with regard to disciplinary offences in prison. These are left to be dealt with by rules made under section 47 of the Act which provides:
"(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."
In relation to disciplinary offences the rules allocate functions both to the board of visitors and to the prison governor. Boards of visitors are appointed under section 6 of the Act and by section 7 every prison is required to have a governor. By section 13(1) every prisoner is deemed to be in the legal custody of the governor of the prison.
The all important provisions, for present purposes, are found in rules 47 to 56 of the Rules of 1964. Rule 47 sets out a list of 21 offences against discipline. The general scheme of the code which the rules establish is, as one would expect, that the governor (or any officer of the prison to whom the governor has duly delegated the relevant power and duty under rule 98) may impose limited punishment for relatively minor offences, while the board of visitors may impose more severe punishment for graver offences. But the procedural path prescribed after a prisoner has been charged with an offence follows a largely common course irrespective of the gravity of the charge. Thus in all cases the charge is to be laid as soon as possible (rule 48(1)); the prisoner is to be kept apart from other prisoners "pending adjudication" (rule 48(2)); the charge is to be inquired into in the first instance by the governor as soon as possible, normally not later than the following working day (rule 48(3) and (4)). Again in all cases it is required that the prisoner "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" and that "the prisoner shall be given a full opportunity of hearing what is alleged against him and of presenting his own case": (rule 49). In all cases save those subject to rule 52, to which I will refer later, the governor has power to dismiss the charge. Apart from rule 52 the divergence between what may be called "governor's offences" and "board of visitors'...
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