R v Board of Visitors of HM Prison, The Maze, ex parte Hone
| Jurisdiction | England & Wales |
| Judge | Lord Mackay of Clashfern,Lord Bridge of Harwich,Lord Ackner,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 21 January 1988 |
| Judgment citation (vLex) | [1988] UKHL J0121-1 |
| Date | 21 January 1988 |
| Court | House of Lords |
[1988] UKHL J0121-1
House of Lords
Lord Chancellor
Lord Bridge of Harwich
Lord Ackner
Lord Oliver of Aylmerton
Lord Goff of Chieveley
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Goff of Chieveley. I agree with him that these appeals should be dismissed for the reasons which he has given.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Goff of Chieveley. I agree with it and for the reasons he gives I would dismiss the appeals.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Goff of Chieveley. I agree with it and for the reasons he gives I would dismiss the appeals.
My Lords,
I have had the advantage of reading the speech prepared by my noble and learned friend, Lord Goff of Chieveley and I agree that the appeals should be dismissed for the reasons which he has given.
My Lords,
There are before your Lordships' House two consolidated appeals, brought by leave of this House, from a decision of the Court of Appeal in Northern Ireland. Both appeals raise the same issue, viz. whether a prisoner appearing before a board of visitors on a disciplinary charge is entitled as of right to legal representation at the hearing.
The factual background to the two cases can be briefly summarised as follows. The first of the two appellants, Michael Joseph Hone, is serving a term of life imprisonment at Her Majesty's Prison, The Maze, Lisburn. On 23 October 1984, he was charged with an offence against discipline contrary to rule 31(5) of the Prison Rules (Northern Ireland) 1982 (S.R. 1982 No. 170); the offence so charged was that he had assaulted a prison officer, Officer Wylie, by throwing a mug of tea in his face and hitting him with his fist and boot. Rule 32 of the Rules of 1982 makes provision for awards which the governor may make for an offence against discipline; under rule 33 (which is concerned with more serious offences) there is a provision, in rule 33(1)(e), whereby, in the case of any serious offence against discipline for which in the view of the governor it may be desirable to award a more severe punishment than is provided in rule 32, the governor may refer the charge to the Secretary of State. On 30 October the governor of the Maze Prison, having investigated the case (to which this appellant pleaded not guilty), decided that there was a charge to answer and that he should refer the case to the Secretary of State. The latter delegated his powers under rule 33 to the board of visitors in the normal way, pursuant to rule 33(5). They held an inquiry on 3 May 1985, the chairman being Dr. D. R. Delargy. They found the charge proved, and awarded 60 days' loss of privileges and the first 30 days in cellular confinement.
On 8 May 1985 the first appellant was granted leave to apply for judicial review. On 11 October 1985 his application was dismissed by Gibson L.J.; and on appeal his decision was affirmed by the Court of Appeal on 18 September 1985. Before Gibson L.J., the first appellant relied upon a number of grounds, all of which were rejected by him. Before the Court of Appeal, his grounds of appeal related to a complaint that he was denied legal representation before the board of visitors. His principal grounds of appeal were as follows:
"1. That the trial judge erred in law in holding that the applicant does not have a right to legal representation when appearing before the board of visitors. 2. That having held that the board had a discretion to permit legal representation the trial judge erred in holding that the board had exercised its discretion properly in refusing to permit the applicant to be legally represented. 3. That no reasonable board of visitors properly directing itself to issues of fact and law could reasonably have refused the applicant's request for legal representation. 4. That the trial judge misdirected himself by holding that 'rule 33 of the 1982 Prison Rules indicates that an assault is not one of the more serious offences' and further misdirected himself by holding that 'not being classified as a more serious offence the range of penalties is correspondingly less than in the case of more serious offences.'"
All these submissions were rejected by the Court of Appeal.
The second of the two appellants, Richard McCartan, is serving a total sentence of 24 years imprisonment, also at the Maze Prison. On 16 November 1980, he was charged with two offences against prison discipline, contrary to rule 31(5) of the Rules of 1982, viz. (1) that he assaulted a prison officer, Officer McKinney, causing severe injuries to his face, and (2) that he assaulted Officer Doherty by kicking him on the left leg. On 6 March 1985, the governor, having investigated these two charges, decided that there were cases to answer and that he should refer them to the Secretary of State under rule 33(1). The Secretary of State having delegated his powers to the board of visitors, they inquired into the offences on 1 April 1985, the chairman being Mr. Bach.
They found both charges proved. In respect of the assault on Officer McKinney, they awarded 100 days' loss of remission and 30 days' cellular confinement, the latter suspended for six months. In respect of the assault on Officer Doherty, they awarded 20 days' cellular confinement and 30 days' loss of remission, the latter suspended for six months. Leave to apply for judicial review was granted on 24 May 1985. The only ground relied on by this appellant was that he had a right to legal representation before the board of visitors and was denied that right. It was recognised that his case was governed by the case of Hone and so Gibson L.J., at the invitation of counsel for McCartan, ruled that he had no such right. He then appealed to the Court of Appeal on that one ground; and on 18 September 1986 the Court of Appeal, having dismissed Hone's appeal, proceeded also to dismiss the appeal of McCartan. The appeal before your Lordships' House on both appeals is, as already recorded, confined to the single issue whether the appellants were entitled as of right to legal representation before the board of visitors.
I turn first to the statutory framework. The Rules of 1982 were made pursuant to section 13 of the Prison Act (Northern Ireland) 1953. The relevant rules for present purposes are rules 29 to 33 inclusive. Rule 29 is entitled "Disciplinary charges." Rule 29(3) is to the effect that every charge against a prisoner shall be dealt with by the governor or (where there is one) the deputy governor or, if neither is available, another officer authorised by the governor. Rule 29(5) provides:
"The governor shall inquire into any charge not later, save in exceptional circumstances, than the next day unless that day is a Sunday or public holiday."
Rule 30 is entitled " Rights of prisoners charged." It provides:
"(1) Where a prisoner is charged with an offence against discipline, he shall be told about the charge as soon as possible and, in any case, before the time when it is inquired into by the governor. (2) At any inquiry into a charge against a prisoner, he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case."
Rule 31 is entitled "Offences against discipline." It sets out a list of 21 offences against discipline, including, in rule 31(5), the case where a prisoner commits any assault. Some of these disciplinary offences, like an assault under rule 31(5), also constitute criminal offences; others do not. Rule 32 makes provision for governor's awards. The awards which may be made by the governor are listed in rule 32(1) as follows:
"The governor may, subject to rules 33 and 34, make one or more of the following awards for an offence against discipline - ( a) caution; ( b) loss of remission for a period not exceeding 28 days; ( c) stoppage of earnings for a period not exceeding 28 days; ( d) stoppage of any or all privileges other than earnings, for a period not exceeding 28 days or 90 days in the case of evening association; (e) exclusion from associated work for a period not exceeding 14 days; (f) cellular confinement for a period not exceeding three days."
Rule 33 is concerned with more serious offences. Rule 33(1) provides:
"Where a prisoner is charged with any of the following offences - ( a) mutiny or incitement to mutiny; ( b) man offence under the Act; ( c) gross personal violence to an officer; ( d) gross personal violence to any person not being an officer; ( e) any serious or repeated offence against discipline for which in the view of the governor it may be desirable to award a more severe punishment than is provided in rule 32; the governor, unless he dismisses the charge, may, and in the case of an offence under ( b) shall, refer the charge to the Secretary of State."
Under rule 33(5), the Secretary of State may delegate his powers under the rule to the board of visitors in any particular case. The awards which he (or the board of visitors on his behalf) may make are listed in rule 33(2) and are considerably more substantial than those within the power of the governor.
I should also mention that rules 101 to 108 make provision for the powers and duties of boards of visitors. It is not, I think necessary to refer to these rules, except to record that rule 105 is concerned with adjudication procedure by boards.
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