Prisons, Rules and Courts: A Study in Administrative Law

DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb01882.x
Published date01 July 1993
Date01 July 1993
Prisons, Rules and Courts: A Study in
Administrative
Law
Martin Loughlin
*
and
Peter
M. Quinn
**
Prisons are, by their nature, difficult institutions within which to maintain order.
Prisoners are, after all, held against their will and incarceration is rooted in the
use of force. Prisons are manifest symbols of the power of the state but they cannot
-
and are not
-
run through brute force. They function in accordance with a
hierarchical principle of ordering, and to suggest that this structure of authority
is an order produced by fear and the threat of violence would seem to imply that
the most orderly prison is the most coercive. To adopt such an approach would
be to ignore the role of rules in the ordering of the prison regime. The prison
authorities undoubtedly possess great power to define, revise, interpret and manipulate
these rules. But to deny the significance of the system of rules would be to present
a limiting conception of the idea of power and a distorted picture of the prison regime.
Prison life is structured by rules and, to some extent, prisoners acquiesce in that
structure of rules.
In this article we propose to examine the character of the rules which regulate
the prison system. This exercise immediately gives rise to a host
of
questions. Who
drafts the rules and with what degree of latitude and public scrutiny? How are duties
and rights allocated under the rules? What role do the rules play
in
regulating conduct
within the system? Who adjudicates? What checks are there within the system? We
aim to provide an insight into a number
of
these questions but will do
so
mainly
by focusing on the more specific issue of the supervisory role of courts in respect
of this system of administrative rules. During the last
15
years, the courts have
come to play an active role in reviewing the conduct of disciplinary proceedings
in prisons and have performed a key role in bringing about
a
transformation in the
structure of the prison disciplinary system. This episode in itself provides an
interesting study of the impact of judicial review on the administrative process. But
it is important also for casting some light on the character of the authority structure
of the prison system.
A
Prisons
and
Rules
The administration of the prison system in England and Wales is governed by the
Prisons Act
1952.
This Act establishes the managerial framework governing the
120
or
so
prisons, young offender institutions and remand centres within which
45,000
prisoners are contained and
are
supervised by
23,000
staff.' All prisons are
required to have a governor2 and every prisoner is deemed to be in the legal
*Professor of Law, University of Manchester.
**Governor,
HM Prison Service; Visiting Fellow, Faculty of Law, University of the West of England
(Bristol).
The
views expressed are those of the author and should not be taken
to
represent those of the Prison Service
or the
Home Office.
1
The average prison population
for
1991/92 was 45,162 (not counting an average of 1,310 held in
police cells). On 6 April
1992
the numbers of permanent staff employed in the Prison Service was
36,350,
of
whom 23,050 were prison officers working in establishments.
See
Home Office,
Report
ofthe
Work
ofthe
Prison Service, April
1991-March
1992
(London: HMSO, 1992)
5,
39.
2
Prison Act 1952,
s
7.
0
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Publishers, 108 Cowley Road, Oxford OX4 1JF and 238 Main Street, Cambridge,
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IJSA.
Zhe
Modern
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[Vol.
56
custody of the governor of the pri~on.~ However, all powers in relation to prisons
and prisoners are exercisable by the Secretary of State.4 In discharging this
responsibility the Minister is empowered to make rules, by statutory instrument, for
the ‘regulation and management of prisons . .
.
and for the classification, treatment,
employment, discipline and control of persons required to be detained therein.
’5
The current rules, the Prison Rules
19154,~
cover a wide variety of circumstances
concerning the ordering of prison establishments, including the provision of facilities,
the establishment of disciplinary order, receiving visitors and obtaining access to
legal advice.’ These Rules are augmented by Standing Orders
(SOs)
and Circular
Instructions (CIS).
SOs
provide administrative guidance indicating how the discretion
vested in governors by the Rules should be exercised, Amendments to
SOs
are
communicated to governors by way of CIS.
SOs
and CIS have no legislative
authority.8 However, unlike certain other forms of guidance issued by the Minister
to governors, such as the Prison Service Manual on Security or Headquarters
Confidential Memoranda,
SOs
and
CIS
are
routinely placed in the House of Commons
Library. The current seventeen
SOs
comprise a one-inch thick, double-sided wad
of closely printed instructions. Over the past five years, CIS have been issued at
a rate of over fifty per year, though not all amend
SOs.
Rule
47
lays down a code of offences against prison discipline. This code ranges
from essentially domestic matters (such as being disrespectful to any officer or failing
to work properly) to charges of a criminal character (such as assault, theft or criminal
damage). In
1991
some
91,000
charges were laid, of which about
6,000
were
dismissed.9 A prisoner charged with a disciplinary offence must appear before the
governor, who may either dispose of it under the disciplinary code or, if sufficiently
serious, invite the police to investigate with a view to prosecution. If the disciplinary
charge
is
made out, the governor may impose a variety of punishments. These range
from a caution or the forfeiture of certain privileges to cellular confinement for
a period not exceeding three days or an award of no more than
28
additional days
in custody within the parameters of the total sentence.Io If a prisoner ‘appeals’
against a governor’s award,” the case is reviewed by the appropriate Area
Manager of the Prison Service who may exercise the Minister’s power under Rule
56
to quash findings and remit or mitigate punishments. This is not a re-hearing of
the evidence but a review of the record for procedural propriety or fairness.
In
January
1993
the Home Secretary announced the establishment of a Prisons Ombudsman who
would act as an independent mechanism of appeal in disciplinary proceedings.I2
The prison disciplinary system has taken its current form only since
1
April
1992.
Prior to this date, although
95
per cent of offences were heard by the governor,
the more serious offences were dealt with by the Board of Visitors, an independent
3
ibid
s
13(1).
4
ibid
s
1.
5
ibid
ss
47, 52.
6
SI
1964
No
388 (as amended).
7 For
a
functional classification of the Prison Rules
see
Zellick, ‘Prison Rules and the
Courts’
(1981)
CLR 602; (1982) CLR 575.
8
On
the legal status
of
Standing Orders see
Raymond
v
Honey
[1983] AC
1,
12-13
@er
Lord
Wilberforce)
.
9 Home Office,
Statistics
of
Offences against Prison Discipline and Punishments in England and Wales,
Cm 2066 (London: HMSO, 1991)
1.
10
The
idea
of ‘additional days’ replaced that of ‘forfeiture of remission’ by virtue of the Criminal Justice
Act 1991,
s
42.
11
Strictly, this mechanism is not an appeal but rather the use
of
a grievance procedure.
12
HM
Prison Service, News Release 12/93 (28 January 1993).
See
further pp 519-521 below.
498
0
The
Modem
Law Review Limited
1993

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