Legitimate Expectations and Prisoners' Rights: The Right to Get What You are Given
| Date | 01 September 1997 |
| Published date | 01 September 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00112 |
Legitimate Expectations and Prisoners’ Rights: The
Right to Get What You are Given
Steve Foster*
A recent decision of the Court of Appeal
1
attempts to clear up the controversy
surrounding the doctrine of legitimate expectations and its effect on substantive
rights by declaring that the doctrine can only be used to confer procedural
benefits.
2
The decision is also of importance to the area of prisoners’ rights, the
context in which the case was decided. As there is little primary legislation
guaranteeing prisoners any rights
3
prisoners have to rely on either secondary
legislation in the form of the Prison Rules, or on administrative regulations
4
which
lack legal status, to base their claims. Faced with this position it has been important
to argue that these regulations and practices give rise to a legitimate expectation
that they will be adhered to, and, possibly, that they will not be amended to the
detriment of the prisoner, either without consultation, or, even then, not unless
there is good reason to do so.
5
The Modern Law Review Limited 1997 (MLR 60:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 727
* Coventry University.
1RvSecretary of State for the Home Department and another, ex p Hargreaves and others [1997] 1
All ER 397.
2 Until this case there had been conflicting case law in this area. In RvSecretary of State for Transport,
ex p Richmond Upon Thames London BC [1994] 1 All ER 577, Laws J denied that the doctrine could
give effect to substantive as opposed to procedural expectations, whilst in RvMinistry of Agriculture,
Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 (noted by Himsworth,
‘Legitimately Exceeding Proportionality’ [1996] PL 46) Sedley J held that the doctrine could, in
limited circumstances, confer substantive benefits. For a general account of the doctrine see Craig,
Administrative Law (London: Sweet and Maxwell, 1994) chapter 18; De Smith, Woolf and Jowell,
Judicial Review of Administrative Action (London: Sweet and Maxwell, 1995) 417–430 and 563–576;
Craig, ‘Legitimate Expectations: A Conceptual Analysis’ (1992) 108 LQR 79; Forsyth, ‘The
Provenance and Protection of Legitimate Expectations’ [1988] CLJ 238; Elias, ‘Legitimate
Expectations and Judicial Review’ in Jowell and Oliver (eds) New Directions in Judicial Review
(London: Stevens, 1988) 37–50; and, most recently, Dotan, ‘Why Administrators should be Bound by
their Policies’ (1997) 17 OJLS 23. On the specific issue of substantive expectations see Craig,
‘Substantive Legitimate Expectations in Domestic and Community Law’ [1996] 55 CLJ 289.
3 The only right which the current Prison Act 1952 seeks to uphold is contained in section 47(2) which
provides that rules made under the Act 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. This is
reiterated in Rule 49 of the Prison Rules.
4 These may be in the form of Standing Orders or Circular Instructions (known as Advice or
Instructions to Governors after 1994). A reference to the rights of prisoners may also be made in other
administrative documents such as the Prison Discipline Manual.
5 See Livingstone and Owen, Prison Law: Text and Materials (Oxford: Oxford University Press, 1993)
41; Richardson, Law, Process and Custody: Prisoners and Patients (London: Weidenfeld and
Nicolson; 1993) 30–36; Richardson, ‘From Rights to Expectations’ (in Jenkins and Player (eds),
Prisons After Woolf: Reform Through Riot (London: Routledge 1994) Chapter 4, 78–96. It is
submitted, however, that the procedural and other benefits which such regulations provide would be
enforced by reason of judicial implication rather than via the doctrine of legitimate expectations. In
practice, prisoners have not enjoyed great success in challenging changes to prison regulations. See R
vSecretary of State for the Home Department, ex p O’Brien and O’Dhuhibir [1996] Admin LR 121,
affirmed in the Court of Appeal (The Independent, March 6 1997) and RvSecretary of State for the
Home Department, ex p Simmons (The Times 25 October 1988).
To continue reading
Request your trial