R v Board of Visitors of Dartmoor Prison, ex parte Smith
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 04 March 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0304-4 |
| Docket Number | 86/0214 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 March 1986 |
[1986] EWCA Civ J0304-4
Lord Justice Watkins
Lord Justice Croom Johnson
Lord Justice Ralph Gibson
86/0214
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
MR J. G. M. LAWS, instructed by The Treasury Solicitor, appeared for the Appellant (Defendant).
MR E. H. FITZGERALD, instructed by Messrs B. M. Birnberg & Co., appeared for the Respondent (Plaintiff).
I will ask Lord Justice Ralph Gibson to give the first judgment.
This is an appeal by the Board of Visitors of Dartmoor Prison against the decision of Mr Justice McCullough given on 5th July 1984 in which, on the application of Trevor Smith, a prisoner, he made orders including a declaration that the Board had no power under the Prison Rules to inquire into a charge of assault laid against Trevor Smith on 2nd May 1984. The Board asks this court to reverse the decision of the learned judge and to dismiss the application for judicial review made by Trevor Smith.
Trevor Smith applied to the court in order to question the legality of certain aspects of disciplinary proceedings before the Board. He is a prisoner serving a sentence of seven years' imprisonment imposed on 22nd January 1983. Following an incident at Dartmoor Prison on 16th February 1984 Trevor Smith was charged under Rule 47(2) of the Prison Rules with an offence of doing "gross personal violence" to Prison Officer Johnson in that he struck the officer in the face with a plastic plate with food upon it. Trevor Smith has complained that on that date he was assaulted and beaten by prison officers. He was removed to Exeter Prison on the same day and on his arrival there he was found to have some minor injuries to his face, hip and right knee. There is no evidence before the court as to the result of any inquiry into the circumstances in which Trevor Smith suffered those injuries. This court in these proceedings is not concerned with any questions as to the truth of the charge against Trevor Smith or of his complaints against prison officers but only with the extent of the powers of the Board of Visitors under the Prison Rules.
The Governor at Dartmoor Prison conducted his preliminary hearing to inquire into the charge against Trevor Smith on 18th February 1984. It appears that the police were asked to consider prosecution of Trevor Smith under the criminal law but, when a decision was made not to prosecute, the charge against him under the Prison Rules was referred by the Governor to the Board for hearing under Rule 52.
The hearing before the Panel of the Board of Visitors of the charge of doing "gross personal violence" was held on 2nd May 1984. The Panel included two Justices of the Peace as required by Rule 52(2). Mr John Kirkby, a solicitor, appeared to present the case on behalf of the Governor, and Trevor Smith was represented by counsel, Mr Edward Fitzgerald.
Prison officers gave evidence about the incident and were cross-examined. Medical evidence showed that Prison Officer Johnson had suffered a small laceration over the left eyebrow. At the end of the case presented in support of the charge Mr Fitzgerald submitted that there was no case to answer on the ground that the injury caused could not amount to "gross personal violence", and that there was no evidence of the intent to do such violence which (it was submitted) was required. The correctness of those submissions is not in issue in this case. The Panel accepted that gross personal violence had not been proved and ordered that a charge of assault under Rule 47(4) be preferred by issue of a new Form 1127. Mr Fitzgerald then submitted that the powers of the Panel of the Board were limited to inquiring under Rule 52(3) into the specific charge which had been referred to them and, if they found the offence proved, to making an award of punishment as provided. There was therefore, he submitted, no power to substitute a lesser charge or to deal with that lesser charge. The Panel took the view that its proposed course of action was within the powers of the Board as they were explained in the Green Book. That is a booklet of advice upon, and explanation of, the Prison Rules supplied by the Home Office to members of the various Boards of Visitors. Mr Fitzgerald informed the Panel that consideration would be given to an application by Trevor Smith to the High Court to prohibit any such further proceedings. The hearing of the charge against Trevor Smith was therefore adjourned generally.
The passage in the Green Book to which the Panel referred and which they regarded as correct, and therefore adopted, was as follows: "(4) During the hearing it may appear that the facts constitute a similar but less serious offence than that charged. In those circumstances a charge may be reduced by the adjudicating Panel during the hearing.
" Note Governors may not prefer alternative charges. Where the facts of a case adduced at the hearing are clear, but not sufficient to supply every ingredient of the offence charged, though sufficient to supply the ingredients of a charge for some other offence, there is no objection to a charge being reduced to another of the same nature, e.g. from gross personal violence to assault, provided
"A. This is made clear to the inmate and recorded;
"B. The inmate is served with a fresh form 1127 (Notice of Report) and if he so wishes is allowed sufficient time, e.g. by an adjournment to a later time or a later date, to prepare his defence to the reduced charge;
"C. The alteration is made during the course of the hearing, and not after the accused has been found not guilty of the original charge;
"A charge of a more serious, or different, nature should not be substituted."
Form 1127 (Notice of Report), referred to in that extract from the Green Book, is the form by which a prisoner is notified that a charge has been laid against him.
The Panel indicated (page 52) that it would be "up to the defence to advise whether the hearing will continue under the amended charge of assault or whether a new tribunal will have to be appointed and the case considered de novo". It thus appears that the procedure contemplated by the advice set out in the Green Book would have permitted the reduced charge to have been dealt with at the same hearing on the evidence already called, together with any evidence adduced by or on behalf of Trevor Smith, if the defence had been content to proceed. On the evening of 2nd May 1984 Prison Officer Wilcox charged Trevor Smith with the offence of assault, contrary to Rule 47(4) and on the next day, 3rd May 1984, the Governor referred the charge to the Board of Visitors under Rule 51(1)(b).
Application was made to the High Court by Trevor Smith on or about 30th May 1984. Leave was granted on 4th June 1984. On 5th July 1984 Mr Justice McCullough upheld the complaint of Trevor Smith and declared that the Board had no jurisdiction to direct on 2nd May 1984 that a lesser charge of assault contrary to Rule 47(4) be laid against him in place of the original charge of gross personal violence; and that an order of prohibition should go to prohibit the Board from proceeding to inquire into the charge of assault laid against the applicant on 2nd May 1984. The main ground of the decision of the learned judge was that the Prison Rules contained no express power in the Board of Visitors to convict of a lesser offence when it was inquiring into a major offence and that the Rules could not be construed so as to confer such power by implication. He held in addition that the laying of the lesser charge on 2nd May 1984 in respect of the incident which had occurred ten weeks and five days earlier on 16th February 1984 was not lawful under the Prison Rules because it had not been laid "as soon as possible" as required by Rule 48(1).
Notice of appeal against that decision of the learned judge was given by the Board of Visitors on 31st July 1984. Before that notice was given it had been decided that "the adjudication…was not to proceed" against Trevor Smith with reference to the lesser substituted charge. He was so informed. By letter dated 24th July 1984 from the Clerk to the Board of Visitors that information was passed to his solicitors. The decision was made on the ground that a prisoner should not be subjected to the anxiety of delay, arising from the appeal to this court, in the hearing of a disciplinary charge against him. The decision, which cannot be criticised, means that whatever the outcome of this appeal Trevor Smith cannot be affected in any way on the substantive issues. It gave rise to the contention before this court that the appeal should not be permitted to proceed on the ground that there is no longer a real issue to be decided. That question was raised at the outset of the hearing. This court, after hearing argument, decided that the appeal should proceed. The submissions made and the grounds of that decision were as follows.
Reference was made to Sun Life Assurance Company of Canada v Jervis (1944) A.C. 111. In that case the claim of an assured to rectification of a policy was upheld by a divided Court of Appeal. Upon application for leave to appeal to the House of Lords the Court of Appeal granted leave on terms that the defendants undertake to pay the costs as between solicitor and client in the House of Lords in any event and not to ask for the return of any money ordered to be paid to the plaintiff. The House of Lords declined to hear the appeal on the ground that there was no issue to be decided between...
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