R v Deputy Governor of Camphill Prison, ex parte King
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE GRIFFITHS,LORD JUSTICE BROWNE-WILKINSON |
| Judgment Date | 31 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0731-4 |
| Docket Number | 84/0340 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1984 |
In the Matter of an Application by Mr Nicholas King for Judicial Review
[1984] EWCA Civ J0731-4
Lord Justice Lawton,
Lord Justice Griffiths
and
Lord Justice Browne-Wilkinson (Not Present)
84/0340
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
From: Lord Justice Kerr & Mr Justice Glidewell (Divisional Court, London)
Royal Courts of Justice,
MR STEPHEN SEDLEY, Q.C., and MR EDWARD FITZGERALD (instructed by Messrs B.M. Birnberg & Co., SE1) appeared on behalf of the Appellant (Applicant).
MR SIMON BROWN and MR ALAN MOSES (instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Respondent)
Lord Justice Browne-Wilkinson has been unable to be present today. We have discussed with him all the likely orders that can possibly arise so that we can deal with it.
This is an appeal by Mr King against a judgment of the Divisional Court (Lord Justice Kerr and Mr Justice Glidewell) refusing his application for the judicial review of an adjudication by the Deputy Governor of Camphill Prison, made on 15 October 1983 under the Prison Rules 1964, whereby he was ordered to forfeit 14 days remission of the sentence of imprisonment which he was then serving. The Divisional Court adjudged that the Deputy Governor had not misconstrued the Prison Rule under which he had made his adjudication (Rule 47(7)). It followed that there was no error of law to be reviewed. Lord Justice Kerr adjudged, however, that judicial review could arise from a Prison Governor's adjudication under the Prison Rules 1964. Mr Justice Glidewell adjudged that it could not.
The issues in this appeal are these: first, did the Deputy Governor misconstrue Rule 47(7) which is a statutory one and made under powers given to the Secretary of State by the Prison Act 1952; and secondly, if he did, was there jurisdiction in the High Court to order judicial review on the application of the aggrieved party, Mr King.
For some months before 14 October 1983 the Governor and staff of Camphill Prison had had to deal with, and try to stop, drug trafficking and abuse amongst convicted prisoners, of whom Mr King was one. On 14 October 1983 prison officers searched his cell, which he occupied with three other prisoners. The officers found in it a hypodermic needle wrapped in tissue paper which had been hidden in an electrical conduit box in the ceiling of the cell. Both the needle and the tissue paper were clean, which was consistent with the needle not having been in the cell very long. All four occupants denied any knowledge of the presence in the cell of this needle. They were all put on report and charged under Rule 47(7) with a disciplinary offence. The charge was in these terms:
"At about 10.30 hours on 14:10:83 in Cell 2/10 of St.Thomas Hall you had in your cell a hypodermic needle".
In accordance with Prison Rule 48(3) the Deputy Governor, act-ing for the Governor (see Rule 98), enquired into the charge. Mr King was afforded the rights given him by Rule 49. He told the Deputy Governor that he knew nothing about the needle. The others said the same. The Deputy Governor found the charge proved against all four prisoners. In an affidavit sworn and filed for the purpose of these proceedings the Deputy Governor gave his reasons for deciding as he did against Mr King, namely, that he had been in the cell knowing that there was an unauthorised article there.
It was submitted on behalf of Mr King that in so deciding the Deputy Governor misdirected himself as to the construction of Rule 47(7) in that he assumed that the charge had been proved merely by showing that Mr King had knowledge of the presence of the needle in his cell whereas he could only be said to have had it in his cell if he had either in himself or jointly with the others some control over it.
Rule 47(7) is in these terms:
"a prisoner shall be guilty of an offence against discipline if he—
(7) Has in his cell or room or in his possession any unauthorised article, or attempts to obtain such an article".
Although a disciplinary offence is not a criminal one, Mr Fitzgerald submitted on behalf of Mr King that Rule 47(7) should be construed in the same way as a penal statute or a penal provision in a statutory instrument and that unless the provision being construed showed by implication that the prohibited act should be an offence, even though the doer of it had no guilty mind and acted innocently, the proof of a guilty mind was an essential element in the offence: see R. v. St. Margaret's Trust Ltd. (1958) 42 Cr.App.R. 183 per Mr Justice Donovan (as he then was) at page 190. If, submitted, Mr Fitzgerald, the word "has" is given its ordinary dictionary meaning, there is inherent in it the concept of "holding in hand": see Shorter Oxford English Dictionary. This being so, Mr King's knowledge of the presence of the needle in his cell did not amount to a finding that he had control over it. When prisoners are sharing a cell, one of them may well be able to dominate the others so as to deny them any control over an unauthorised article.
Mr Simon Brown, on behalf of the Deputy Governor, submitted that Rule 47(7) provided for a disciplinary offence which is part of a code to ensure that there is a well-ordered community life in prison: see Rule 2(1). Ensuring that articles such as hypodermic needles are not kept in cells is an essential part of a prison governor's duty to manage. The performance of this duty calls for an absolute prohibition against having unauthorised articles in cells. That such a prohibition is intended is shown by the distinction which is made between "has in his cell or room" and "has…in his possession". Mr Brown accepted that the word "possession" does connote an element of control, but submitted that the word "has" in this context does not. The weakness in his submission is revealed by his acceptance that the word "has" must be qualified by the word "knowingly". If so qualified, why should not the word have its primary meaning? In the days when every prisoner had his own cell, which were long over by 1964, the inference could properly and fairly have been drawn that if an unauthorised article were found in a cell the occupier knew it was there and intended that it should remain there. That is no longer so. In my opinion the management problem so strongly relied upon by Mr Brown and which I appreciate is a difficult one for prison governors can and should be solved by dividing the disciplinary offence under Rule 47(7) into two parts: the first part would make it an offence for a prisoner to have in his possession an unauthorised article and the second part would provide that it should be an offence if, knowing that an unauthorised article was in his cell, he failed to take such action as he reasonably could to ensure that it was removed. An offence drafted in some such terms as these would enable a governor to take into account the difficulties which a prisoner, shut up with a violent man, might have in himself removing an unauthorised article or telling a landing officer that there was such an article in his cell. In my judgment the Deputy Governor did misconstrue Rule 47(7).
This being so, submitted Mr Sedley, on behalf of Mr King, judicial review must be available. The Deputy Governor had misused his statutory powers to the prejudice of Mr King who, as a result of the wrong adjudication, would have to stay in prison 14 days longer than he legitimately expected to have to do. In R. v. Board of Visitors of Hull Prison, ex parte St. Germain (1979) Q.B. 425 this court had adjudged (and its judgment was later approved by the House of Lords in O'Reilly v. mackman (1983) 2 A.C. 237) that adjudication on disciplinary offences under the Prison Rules 1964 made by a Board of Visitors of a prison were subject to judicial review. It followed, said Mr Sedley, that adjudications for disciplinary offences under the same prison rules made by a prison governor must, on principle, also be subject to judicial review and that Lord Justice Megaw, in the St. Germain case, was wrong in saying at page 448, albeit obiter, that "both good sense and the practical requirement of public policy made it undesirable that his (i.e. a Governor's) exercise of that part of his administrative duties should be made subject to certiorari".
Mr Sedley's submissions on the jurisdiction of the High Court to grant judicial review covered a wide area of administrative law. I do not consider it necessary in this judgment to comment on his survey since the principles upon which the High Court can and should order judicial review are now well settled and known. Broadly stated, judicial review is available when any person exercising statutory functions misapplies public law. Judicial review, however, is not available merely because someone exercising statutory functions performs them incompetently. The courts are not concerned with supervising the exercise of statutory powers of management but with preventing the misuse of public law. It follows, so it seems to me, that this court has to decide whether a prison governor, when making an adjudication on a charge preferred under Rule 47 of the Prison Rules 1964 is performing a management function or exercising a judicial one.
It has long been accepted that the High Court has no jurisdiction to supervise the way discipline is enforced in the Armed Services: see R. v. Army Council, ex parte Ravenscroft (1917) 2 K.B. 504. Should prison governors be equated with commanding officers in the Armed Services? It is tempting to adjudge that they should be; but to...
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