R v Board of Visitors of Hull Prison, ex parte St Germain

JurisdictionEngland & Wales
JudgeLORD JUSTICE MEGAW,LORD JUSTICE SHAW,LORD JUSTICE WALLER
Judgment Date03 October 1978
Judgment citation (vLex)[1978] EWCA Civ J1003-8
Date03 October 1978
CourtCourt of Appeal (Civil Division)

In the Matter of an Application of Raymond Rosa for an Order of Certiorari

And In the Matter of a Decision of the Board of Visitors of Wandsworth Prison dated the 26th day of January 1977 and made under the Prison Rules

In the Matter of an Application of Keith Saxton

And In the Matter of a Decision of the Board of Visitors of H. M. Prison, Hull, dated the 16th day of December 1976 and made under the Prison Rules of 1964.

In the Matter of an Application of Ronald St. Germain for an Order of Certiorari

And In the Matter of a Decision of the Board of Visitors of Hull Prison dated the 16th day of December 1976 and made under the Prison Rules 1964.

In the Matter of an Application by John Michael Reed for leave to apply for an Order of Certiorari

And In the Matter of a Decision/Order dated the 14th day of December 1976 made by the Hull Prison Board of Visitors.

In the Matter of an Application by Peter Rajah for an Order of Certiorari

And In the Matter of a Decision of the Board of Visitors of H. M. Prison, Hull, dated the 16th day of December 1976 and made under the Prison Rules 1964.

In the Matter of an Application by Kenneth Anderson for an Order of Certiorari

And In the Matter of a Decision of the Board of Visitors of H. M. Prison, Hull, dated the 16th day of December 1976 and made under the Prison Rules 1964.

Roland St. Gernain
and
The Board of Visitors of Hull Prison and Ors

[1978] EWCA Civ J1003-8

Before:

Lord Justice Megaw

Lord Justice Shaw and

Lord Justice Waller

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(On appeal from Orders of the Divisional Court - Queen's Bench Division)

Mr. MICHAEL BELOFF (instructed by Messrs. Neilson & Co.) appeared on behalf of the Applicant Rosa; and (instructed by Messrs. Bindman & Partners) on behalf of the Applicant/Appellant Saxton; and (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Messrs. Philip Hamer & Co., Hull) on behalf of the Applicant/Appellant Reed; and (instructed by Hilary Kitchin, Legal Department, National Council for Civil Liberties) on behalf of the Applicant/Appellant Rajah; and (instructed by Messrs. Douglas-Mann & Co., Agents for Messrs. Patterson, Glenton & Stracey, South Shields) on behalf of the Applicant/Appellant Anderson.

Mr. ANDREW COLLINS (instructed by Messrs. Gamlens, Agents for Messrs. George Baker & Co., Guildford) appeared on behalf of the Applicant/ Appellant St. Germain.

Mr. PHILIP OTTON, Q.C. and Mr. HARRY WOOLF (instructed by Treasury Solicitor) appeared on behalf of the Respondents.

LORD JUSTICE MEGAW
1

At the end of August and the beginning of September, 1976, rioting took place in Her Majesty'S Prison, Hull. As a result, disciplinary proceedings were taken in respect of 180 prisoners. Seven prisoners who had thus been dealt with applied to the Divisional Court of the Queen'S Bench Division for leave to move for orders of certiorari to quash the awards made by the Board of Visitors of Hull Prison in their respective cases. The Court granted leave ex parte; but thereafter, on an inter partes hearing, by judgment delivered on 6th December, 1977, refused the applications, holding that the remedy of certiorari did not lie in respect of awards made by Boards of Visitors in respect of alleged offences against discipline under the Prison Rules, 1964. Five of those applicants, namely, Ronald St. Germain, Michael Reed, Keith Saxton, Kenneth Anderson and Peter Rajah, appeal from that judgment, to this Court. A sixth case raising the same issue is also before us, having come by a different route. That is the application of Raymond Rosa by way of original motion to this Court, by leave granted on 4th October, 1977, for leave to move for an order of certiorari. In Rosa'S case, the respondents are the Board of Visitors of Her Miajesty'S Prison, Wandsworth. That case is not concerned with the Hull Prison riots but with events in Wandsworth Prison in January, 1977.

2

All six cases have by consent been heard together, since they all raise one and the same single issue. That issue is an issue of law. It is whether the proceedings of Boards of Visitors established under the Prison Act, 1952, and the Prison Rules made by statutory instrument there under, where those proceedings result in awards in respect of offences against discipline under the Rules, are subject to judicial review. Counsel for the appellants submittedthat such proceedings are "subject to judicial review, at any rate where the allegations are of breaches of the procedure laid down in the Prison Rules and/or he rules of fairness and natural justice". I quote those words, to which I shall return at the end of my judgment, from the opening submissions of Mr. Beloff, who appeared on behalf of five of the appellants: that is, all except the appellant St. Germain, who was represented by Mr. Collins.

3

The Divisional Court, holding that as a matter of jurisdiction certiorari did not lie, therefore did not investigate the allegations in any of these cases as to the alleged breaches of the required procedure or of natural justice in the proceedings of the Boards of Visitors. Neither are we concerned to investigate those matters. We were told that the allegations on which the applications are founded include allegations that the appellants were not allowed by the Boards of Visitors concerned to cross-examine witnesses or to call witnesses whom they desired to call in order to seek to establish that they, the present appellants, had not in fact committed the disciplinary offences with which they were charged.

4

Since these appeals come before us by way of a preliminary issue of law, We are, as I see it, obliged to consider the preliminary issue on the hypothesis that there might be established, if and when the facts come to be examined, some failure to act fairly which could properly be regarded as having caused injustice, in one or more of these cases. That is, of course, hypothetical only.

5

It follows that, assuming that we have jurisdiction to hear these appeals, we do not have to decide, and we do not have material on which we could begin to decide, whether in any of these cases, if the Divisional Court does have jurisdiction, the discretion which it would then have should be exercised by it in any particular way. That, as I un stand it, is common ground before us.

6

Let me give an example to illustrate what that means in practical terms. One of the arguments for the respondents which I shall consider later is that certiorari does not lie, at least at this stage, because there is provision in the Prison Rules for what is, it is claimed, in effect an appeal by the prisoner to the Secretary of State from an award of the Board of Visitors. Let it be assumed for the moment that the existence of that provision does not have the effect of excluding jurisdiction to grant certiorari in respect of the award. It may, nevertheless, still be of relevance as affecting the exercise of the discretion, whether because of the mere existence of another possible remedy, or because it may emerge that a sufficient remedy has in fact been provided. 3ut, for the purpose of the preliminary issue of law, going solely to the question of jurisdiction, we should not make any such assumption.

7

I have, a little earlier, used the precautionary words: "Assuming that we have jurisdiction to entertain these appeals". That was a question which I felt bound to raise at an early stage of counsel'S submissions. Section 31 (1) (a) of the Supreme Court of Judicature (Consolidation) Act, 1925, provides that no appeal shall lie to this Court from any judgment of the High Court in any criminal cause or matter. Section 1 (1) of the Administration of Justice Act, 1960, provides for an appeal to the House of Lords, subject to the conditions set out in that section, from a decision of the Divisional Court of the Queen'S Bench Division in a criminal cause or matter. If the judgment of the Divisional Court in these cases now before us is properly to be regarded as being in a criminal cause or matter, then this Court has no jurisdiction to entertain the five appeals, and the grant of leave to the sixth prisoner, Rosa, would have been by inadvertence.

8

In Amand v. The Home Secretary (1943) Appeal Cases 147, it washeld that this Court had been right in holding that it had no jurisdiction to entertain an appeal from a, refusal by the Divisional Court of Amand'S application for habeas corpus. He had been brought before the Chief Metropolitan Magistrate in order that he might be handed over to the Netherlands military police, apparently so that he might be brought before some Netherlands military court or tribunal under Netherlands law as being a deserter or an absentee without leave from the Netherlands forces. It was held by the House of Lords that the question whether it was a "criminal cause or matter" depended on the nature and character of the proceeding in which habeas corpus (in the present cases, certiorari) is sought. If the matter be one, the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court or tribunal (in that case, a foreign court or tribunal) claiming jurisdiction to impose punishment for the offence, then the "matter" is "criminal". The result in that case was that no appeal lay. In the present case, if that authority governs, the appeals, if any, would be to the House of lords, direct, under the 1960 Act: not to this Court.

9

Counsel for all the parties before us submitted that the judgment from which the appeals are brought is not "in a criminal cause or matter"; that Amand'S case does not apply; and that this Court has jurisdiction. Reference was made to Eraser v. Mudge (1975) 1 Weekly law Reports 1132, where this Court refused an ex parte application on behalf of a prisoner (the application having been refused earlier the same day by the Judge in...

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