O'Reilly v Mackman

JurisdictionUK Non-devolved
JudgeLord Diplock,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Brightman
Judgment Date25 November 1982
Judgment citation (vLex)[1982] UKHL J1125-3
Date25 November 1982
CourtHouse of Lords
O'Reilly (A.P.) and Others
Mackman and Others
Millbanks (A.P.)
Secretary of State for the Home Office and Others
(Conjoined Appeals)

[1982] UKHL J1125-3

Lord Diplock

Lord Fraser of Tullybelton

Lord Keith of Kinkel

Lord Bridge of Harwich

Lord Brightman

House of Lords

Lord Diplock

My Lords,


At the time of the commencement by the appellants of the actions in which these consolidated appeals are brought each of the appellants was serving a long sentence of imprisonment which even now has not expired. By those actions, which were commenced in 1980, in the case of the appellant Millbanks, by originating summons and, in the case of the other appellants, by writ, each appellant seeks to establish that a disciplinary award of forfeiture of remission of sentence made by the Board of Visitors of Hull Prison ("the Board") in the exercise of their disciplinary jurisdiction under Rule 51 of the Prison Rules 1964 is null and void because the Board failed to observe the rules of natural justice. Millbanks in the indorsement to his originating summons alleges bias on the part of the member of the Board who presided over the hearing of the disciplinary proceedings against him. The other appellants in their statements of claim allege that they were not given by the Board a fair opportunity to present their respective cases.


The Board applied to the High Court (Peter Pain J.) that all the actions be struck out as being an abuse of the process of the court. The judge refused the applications but, on appeal to the Court of Appeal (Lord Denning M.R., Ackner and O'Connor L.JJ.), the actions were struck out.


My Lords, it is not contested that if the allegations set out in the originating summons or statements of claim are true each of the appellants would have had a remedy obtainable by the procedure of an application for judicial review under Order 53 of the Rules of the Supreme Court; but to obtain that remedy, whether it took the form of an order of certiorari to quash the Board's award or a declaration of its nullity, would have required the leave of the court under Order 53 rule 3 of the Rules of the Supreme Court. That judicial review lies against an award of the Board of Visitors of a prison made in the exercise of their disciplinary functions was established by the judgment of the Court of Appeal (overruling a Divisional Court) in Reg. v. Hull Visitors, Ex parte St. Germain [1979] Q.B. 425—a decision that was, in my view, clearly right and has not been challenged in the instant appeals by the respondents.


In the St. Germain case, the only remedy that had been sought was certiorari to quash the decision of the prison visitors; but the alternative remedy of a declaration of nullity if the Court considered it to be just and convenient would also have been available upon an application for judicial review under Order 53 after the replacement of the old rule by the new rule in 1977. In the instant cases, which were commenced after the new rule came into effect (but before the coming into force of section 31 of the Supreme Court Act 1981), certiorari would unquestionably have been the more appropriate remedy, since Rule 5 of the Prison Rules 1964, which provides for remission of sentence up to a maximum of one-third, stipulates that the "rule shall have effect subject to any disciplinary award of forfeiture …". Prison Rule 56, however, expressly empowers the Secretary of State to remit a disciplinary award and, since he would presumably do so in the case of a disciplinary award that had been declared by the High Court to be a nullity, such a declaration would achieve, though less directly, the same result in practice as quashing the award by certiorari.


So no question arises as to the "jurisdiction" of the High Court to grant to each of the appellants relief by way of a declaration in the terms sought, if they succeeded in establishing the facts alleged in their respective statements of claim or originating summons and the court considered a declaration to be an appropriate remedy. All that is at issue in the instant appeal is the procedure by which such relief ought to be sought. Put in a single sentence the question for your Lordships is: whether in 1980 after Order 53 of the Rules of the Supreme Court in its new form, adopted in 1977, had come into operation it was an abuse of the process of the court to apply for such declarations by using the procedure laid down by the Rules for proceedings begun by writ or by originating summons instead of using the procedure laid down by Order 53 for an application for judicial review of the awards of forfeiture of remission of sentence made against them by the Board which the appellants are seeking to impugn?


In their respective actions, the appellants claim only declaratory relief. It is conceded on their behalf that, for reasons into which the concession makes it unnecessary to enter, no claim for damages would lie against the members of the Board of Visitors by whom the awards were made. The only claim was for a form of relief which it lies within the discretion of the court to grant or to withhold. So the first thing to be noted is that the relief sought in the action is discretionary only.


It is not, and it could not be, contended that the decision of the Board awarding him forfeiture of remission had infringed or threatened to infringe any right of the appellant derived from private law, whether a common law right or one created by a statute. Under the Prison Rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based upon his knowledge of what is the general practice, that he would be granted the maximum remission, permitted by Rule 5(2) of the Prison Rules, of one-third of his sentence if by that time no disciplinary award of forfeiture of remission had been made against him. So the second thing to be noted is that none of the appellants had any remedy in private law.


In public law, as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the Board on the ground that in one way or another the Board in reaching its decision had acted outwith the powers conferred upon it by the legislation under which it was acting; and such grounds would include the Board's failure to observe the rules of natural justice—which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it.


The power of H.M. Boards of Visitors of a prison to make disciplinary awards is conferred upon them by subordinate legislation: the Prison Rules 1964 made by the Secretary of State under sections 6 and 47 of the Prison Act 1952. The charges against the appellants were of grave offences against discipline falling within Rule 51. They were referred by the governor of the prison to the Board under Rule 51(1). It thereupon became the duty of the Board under Rule 51(3) to inquire into the charge and decide whether it was proved and if so to award what the Board considered to be the appropriate punishment. Rule 49 is applicable to such inquiry by the Board. It lays down expressly that the prisoner "shall be given a full opportunity of hearing what is alleged against him and of presenting his own case". In exercising their functions under Rule 51 members of the Board are acting as a statutory tribunal, as contrasted with a domestic tribunal upon which powers are conferred by contract between those who agree to submit to its jurisdiction. Where the legislation which confers upon a statutory tribunal its decision-making powers also provides expressly for the procedure it shall follow in the course of reaching its decision, it is a question of construction of the relevant legislation, to be decided by the Court in which the decision is challenged, whether a particular procedural provision is mandatory, so that its non-observance in the process of reaching the decision makes the decision itself a nullity, or whether it is merely directory, so that the statutory tribunal has a discretion not to comply with it if, in its opinion, the exceptional circumstances of a particular case justify departing from it. But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilised legal system that it is to be presumed that parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement. What is alleged by the appellants other than Millbanks would amount to an infringement of the express Rule 48; but even if there were no such express provision a requirement to observe it would be a necessary implication from the nature of the disciplinary functions of the Board. In the absence of express provision to the contrary parliament whenever it provides for the creation of a statutory tribunal must be presumed not to have intended that the tribunal should be authorised to act in contravention of one of the most fundamental rules of natural justice or fairness: audi alteram partem.


In Millbanks's case, there is no express provision in the Prison Rules that the members of the Board who inquire into a disciplinary offence under Rule 51 must be free from personal bias against the prisoner. It is another fundamental rule of natural justice or fairness, too obvious to call for express statement of it, that a tribunal exercising functions such as...

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