O'Reilly v Mackman
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ACKNER,LORD JUSTICE O'CONNOR |
| Judgment Date | 30 June 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0630-3 |
| Docket Number | 82/0297 |
| Court | Court of Appeal (Civil Division) |
and
and
[1982] EWCA Civ J0630-3
The Master of the Rolls
(Lord Denning)
Lord Justice Ackner
and
Lord Justice O'Connor
82/0297
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE PETER PAIN)
Royal Courts of Justice.
MR. MICHAEL BELOFF, Q.C. and MR. D.P. PANNICK (instructed by Messrs. Mincoff, Science & Gold) appeared on behalf of the Respondents Noel O'Reilly, Alexander Vernon John Derbyshire and David Martin Dougan.
MR. STEPHEN SEDLEY (instructed by Messrs. Seifert Sedley & Co.) appeared on behalf of the Respondent Anthony Millbanks.
MR. SIMON BROWN (instructed by the Treasury Solicitor) appeared on behalf of the Appellants.
Four men were in prison in Hull. They were all serving long sentences for serious crimes. O'Reilly is typical. He was serving 15 years for robbery. Over four days in September 1976 there was a riot in the prison, coupled with extreme violence. Men got on to the roof and stayed there day and night. They threw missiles and slates off the roof. They ransacked the canteen. They assaulted prison officers and staff. After the riot was quelled, many men were charged with offences against discipline contrary to the provisions of the Prison Rules. In each case the Board of Visitors held an inquiry. Take O'Reilly as an example. The Board found him guilty on all charges. They ordered him to be kept in solitary confinement for 196 days and to lose remission of 510 days. Likewise with others.
Many of the men complained about the conduct of the Board of Visitors. They said that the Board had failed to comply with the rules of natural justice. Seven of them applied for judicial review to quash the decisions of the Board. The Divisional Court held that judicial review was not available to them. The Court of Appeal reversed the Divisional Court and held that it was available. The case is reported under the name of Reg. v. Board of Visitors of Hull Prison, ex parte St. Germain and Others (1979) 1 Queen's Bench 425. As a result there were several cases of judicial review in which some of the men succeeded in having the decisions quashed. I presume there were fresh hearings.
Ordinary writs are issued
Now these four men join in these proceedings. They are long out of time for judicial review. But they have issued ordinary writs in the High Court. They have got legal aid for the purpose. Take O'Reilly again as typical. He issued a writ on the 8th July, 1980. That is nearly four years since the riot took place. He has issued a writ against three gentlemen who were the Board of Visitors and heard his case—Mr. Mackman, Mr. Rundle and Mr. Brady. He has served with the writ a statement of claim. In it he has set out the finding and award of the Board and has said:
"…the Board failed to give the Plaintiff an opportunity to call alibi witnesses in his defence notwithstanding that he requested them to do so and that the evidence thereof was relevant and material to his said defence".
He claims simply:
"A declaration that the said finding of and award by the Board was void and of no effect".
Thereupon the Treasury Solicitor applied to strike out the statement of claim on the ground that it is an abuse of the process of the court.
Now the interesting thing is this: Two years ago another of these prisoners issued a similar writ and statement of claim against the Board of Visitors. Mr. Justice Goulding struck it out. It is reported in (1980) 1 Weekly Law Reports 1386. Now this case about our four men was heard by Mr. Justice Peter Pain on the 5th March, 1982. He differed from Mr. Justice Goulding and refused to strike out the statement of claim. Now there is an appeal to this court.
This looks as if it were merely a point of procedure. But it brings into play some of the fundamentals of our administrative law. I will divide my judgment into three parts. The first is concerned with an action against the Board of Visitors. The second is more general. It is concerned with actions against public authorities. The third part with modern machinery.
PART I
The Board of Visitors
It is as well to bear in mind the constitutional position of the Board of Visitors. It is set out in the Prison Act 1952 and the Prison Rules made thereunder. The Visitors are appointed by the Secretary of State. At least two of them must be Justices of the Peace. When a prisoner is charged with a serious offence against discipline, the Rules require the hearing to be conducted on the self-same lines as a hearing before magistrates. The accused is to be asked whether he pleads guilty or not guilty. Witnesses are called, examined and cross-examined. He makes his defence and calls his witnesses. And so forth. In all essentials, it is a judicial proceeding of the same character as a magistrates' court. The only difference is in the description of the offence and the kind of punishment.
No action lies against them
Such being the constitutional position, it is clear to my mind that the Board of Visitors are entitled to be protected from having actions at law brought against them. They are in the same position as magistrates. They owe a duty to the state to do their work to the best of their ability, see Arenson v. Arenson (1977) Appeal Cases 405 at page 431 by Lord Kilbrandon. But this is not a duty owed by them to the parties before them. It is not a duty which a prisoner can enforce by action. Be they careless, ignorant or mistaken. Be they guilty of want of natural justice. Be they malicious or biased. Go they to sleep and do not heed the evidence. Nevertheless, no action lies against them. As I said in Sirros v. Moore (1975) at page 136 of any judge high or low:
"He is not to be plagued with allegations of malice, ill-will or bias or anything of that kind. Actions based on such allegations have been struck out and will continue to be struck out".
The reason lies in public policy. No judge should be harassed by the thought that: "If I do this or that, I may be sued by this or that prisoner or this or that litigant". Rather than subject a judge to influences of that kind, the law says that no litigant can bring an action against him for anything done by him in his judicial capacity.
Nevertheless certiorari was available
This does not mean that nothing can be done by anyone. An unjust judge—of an inferior court or tribunal—is not free from control. Although he does not owe any duty to the prisoner or to the litigant, he does owe a duty to the state: and the state can call him to account. For this purpose our old books regarded the king as the state, and the state as the king. "L'Etat c'est moi", as Louis XIV said in 1655. It was for the king to call upon a judge of any inferior court and ask him to account for his actions. The king did it by the prerogative writ of certiorari. I gave its origin and described the nature of it in R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1952) 1 King's Bench 338 at pages 347 and 348. The very words "prerogative writ" show that it was issued by the royal authority of the king. No subject could issue it on his own. He had no right to issue it as of course as he could for trespass or trover. All that the subject could, do was to inform the king's judges of his complaint. He could tell them about the unjust judge of any inferior court: the king's judges would then authorise the issue of the writ in the king's name.
The very titles of the proceedings show the difference. It goes from the earliest times down to the present day. When the prisoners at Hull told the judges of their complaint against the Board of Visitors, and they allowed certiorari to issue, it was entitled [see (1979) 1 Queen's Bench 425] Regina v. Board of Visitors of Hull Prison, ex parte St. Germain and Others. Regina means the Queen. The Queen brought the proceedings. The title shows that the prisoners had made an ex parte application to the court: and that the court had given leave for proceedings to be brought in the Queen's name against the Board of Visitors. But, when a prisoner sought to bring an action on his own (without the leave of the king), it was entitled [see (1980) 1 Weekly Law Reports 1386] Heywood v. Hull Prison Visitors. Heywood means the man Heywood. He himself brought the proceedings. The title shows that the prisoner had brought an action on his own cause, as of right, without leave, against the Visitors.
No declaration against the Board
In those circumstances, I see no difference between an action for damages and an action for a declaration. If a prisoner or litigant is not allowed to sue a justice of the peace for damages, neither should he be allowed to sue him for a declaration. Have you ever heard of an action against a magistrate asking for a declaration that he was biased? Or was guilty of any other kind of misconduct? I have not. Nor has anyone else. I am quite sure that no such action lies. That was the view of Lord Goddard in Pyx Granite Co. v. Ministry of Housing and Local Government (1960) Appeal Cases 260 at page 290,...
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