R v Board of Visitors of the Maze Prison, ex p. Hone [1987] UKHL 9

House of Lords
Between
RAppellantBoard of Visitors of the Maze Prison, ex p. HoneRespondent
Before
Lord ChancellorLord Bridge of HarwichLord AcknerLord Oliver of AylmertonLord Goff of ChieveleyDate 18 September 1986
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Orders of Her Majesty's Court of Appeal in Northern Ireland of 18th September 1986 complained of in the said Appeals be, and the same are hereby, Affirmed and that the said Petitions and Appeals be, and the same are hereby, dismissed this House: And it is further Ordered, That the costs incurred by the Appellants in respect of the said Appeals be taxed in accordance with the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.

Cler: Parliamentor

Judgment: 21.1.88

HOUSE OF LORDS

REGINA

V.

BOARD OF VISITORS OF H.M. PRISON, THE MAZE

(RESPONDENTS), EX PARTE HONE (A.P.) (APPELLANT) (NORTHERN IRELAND)

REGINA

V.

BOARD OF VISITORS OF H.M. PRISON, THE MAZE

(RESPONDENTS), EX PARTE McCARTAN (A.P.) (APPELLANT) (NORTHERN IRELAND)

(CONSOLIDATED APPEALS)

Lord Chancellor Lord Bridge of Harwich Lord Ackner Lord Oliver of Aylmerton Lord Goff of Chieveley

LORD MACKAY OF CLASHFERN

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.

LORD BRIDGE OF HARWICH

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.

LORD ACKNER

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.

LORD OLIVER OF AYLMERTON

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.

LORD GOFF OF CHIEVELEY

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(l)( 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.

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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.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

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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."

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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.Before your Lordships' House, the submissions on behalf of the appellants were as follows. The basic submission was that a convicted prisoner retains all his civil rights, except those which are taken away from him expressly or by necessary implication; and that an ordinary citizen charged with a criminal offence is entitled to legal representation before the tribunal which hears the charge against him. It was however accepted that, on an inquiry by the governor of a prison, a prisoner has no right to legal representation; such a right, it was submitted, applied only to hearings before boards of visitors, when the prisoner is charged with a criminal offence or the equivalent of a criminal offence.The submission now advanced before your Lordships' House was dismissed by Gibson L.J. at first instance, in the case of Hone, on the simple ground that he had previously rejected the same submission In re Lillis (1984) N.LJ.B. 15. However, the matter was the subject of very careful consideration by the court of Appeal, the judgment of the Court being delivered by Lord Lowry C.J. He first reviewed the relevant provisions of the Prison Rules applicable in England and in Northern Ireland. These are not identical, but he considered that there was no material distinction between them for the purposes of considering the argument before the court; in particular, rule 49(2) of the English Prison Rules 1964 (S.I. 1964 No. 388) is in terms identical to rule 30(2) of the Northern Ireland Rules of 1982 quoted above. He therefore proceeded to consider the submission before him with reference to both the English and the Northern Ireland authorities.I, for my part, would be content respectfully to adopt Lord Lowry C.J.'s analysis of the authorities as my own; but since this is the first occasion upon which the present question has come before your Lordships' House, I propose to refer to certain aspects of them. The first of the authorities is the decision of the Court of Appeal in R. v. Assessment Committee of St. Mary Abbotts, Kensington [1891] 1 QB 378 . In that case it was held that a householder who objected to a valuation list and wished his objection to be advanced before the assessment committee need not appear in person before the committee but could depute another person to do so on his behalf. This decision has been invoked on subsequent occasions in support of the proposition that any person appearing before a disciplinary tribunal is entitled to legal representation. The decision of the Court of Appeal in Pett v. Greyhound Racing Association Ltd. [1969] 1 Q.B. 125 appeared, as first sight, to give some credence to that proposition. In that case the plaintiff claimed the right to legal representation at an inquiry by the association into a disciplinary matter, concerned with a serious charge against the plaintiff relating to the circumstances in which a greyhound of his was withdrawn from a

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race, it being alleged that traces of barbiturates were found in the dog's urine. On an interlocutory appeal Lord Denning M.R., in holding that natural justice required that in matters affecting a man's reputation or livelihood or any matters of serious purport he should, if he wished, be legally represented, relied upon the St. Mary Abbotts case; and Russell L.J., at p. 135, referred to his "common law right" to be so represented. However, on the substantive hearing of the case (Pett v. Greyhound Racing Association Ltd. (No. 2) [1970] 1 Q.B. 46), Lyell J. concluded that the only duty on the association was to observe the rules of natural justice, and distinguished the St. Mary Abbotts case as being concerned not with legal representation before a tribunal but with a man employing an agent to communicate with a body performing an administrative act. He said, at p. 63:
"It appears to me that the Court of Appeal regarded the overseers as performing an administrative act in preparing the valuation lists .... It has, so far as I am aware, never been suggested that the valuation officer in considering such objections is acting otherwise than in an administrative capacity. In view of the many authorities that domestic tribunals are subject only to the duty of observing what are called the rules of natural justice and any procedure laid down or necessarily to be implied from the instrument that confers their power, I am unable to follow the views expressed in the Court of Appeal, that the plaintiff is entitled to appear by an agent unless such right was expressly negatived by the rules of the club."
Subsequent cases have proceeded on the same basis. Thus in Enderby Town Football Club Ltd, v. Football Association Ltd. [1971] Ch. 591, Lord Denning M.R. rejected the suggestion that a man who is charged before a domestic tribunal is entitled as of right to be legally represented; on the contrary, he regarded that matter as being within the discretion of the tribunal. A similar suggestion was rejected by the Court of Appeal in Fraser v. Mudge [1975] 1 W.L.R. 1132, a case which is very much in point in the present case. There a prisoner asked for an injunction to restrain a board of visitors from inquiring into a charge against him of assaulting a prison officer unless he was represented by a solicitor and counsel of his choice. The case therefore raised the question whether, in such circumstances, the prisoner was entitled to legal representation as of right. Chapman J. refused to grant the injunction, and his decision was affirmed by the Court of Appeal. Roskill L.J. said, at p.
"The argument of Mr. Sedley, as I follow it, really involves that justice cannot be done or cannot at least be seen to be done by the defendants, the visitors, in this case unless there is legal representation of the plaintiff. I wish to make it plain that I do not subscribe to the view that in every type of case, irrespective of the nature or jurisdiction of the body in question, justice can neither be done nor be seen to be done without legal representation of the party or parties appearing before that body. Such a proposition to my mind is untenable. There are many bodies before which a party or parties can be required to appear but who can do justice and can be seen to do justice without the party against whom complaint is made being legally represented.

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Further, as Lord Denning M.R. has said, if the argument in relation to rule 49(2) of the Prison Rules 1964 were well founded, it would equally apply to complaints heard by the governor to which the same language applies, a proposition which I think is also untenable. One looks to see what are the broad principles underlying these rules. They are to maintain discipline in prison by proper, swift and speedy decisions, whether by the governor or the visitors; and it seems to me that the requirements of natural justice do not make it necessary that a person against whom disciplinary proceedings are pending should as of right be entitled to be represented by solicitors or counsel or both."Subsequently, in Reg, v. Secretary of State for the Home Department, Ex parte Tarrant [1985] Q.B. 251, a Divisional Court (consisting of Kerr L.J. and Webster J.) accepted Fraser v. Mudge as binding authority that, before a board of visitors, a prisoner charged with a disciplinary offence has no right to legal representation, though it was held that a board of visitors has a discretion to grant representation; and, in his full and careful judgment, Webster J. referred to considerations which he considered that every board of visitors should take into account when exercising its discretion whether to allow legal representation, or indeed the assistance of a friend or adviser, to a prisoner appearing before it on a disciplinary charge. As appears from Lord Lowry C.J.'s judgment in the present case, the decision of the Divisional Court in Ex parte Tarrant has been twice followed in Northern Ireland, by MacDermott J. in Ex parte Daly (unreported, 1984) and by Gibson J. (as he then was) in In re Lillis (1984) N.IJ.B. 15. It was the latter decision which Gibson L.J. applied in rejecting the application of the first appellant in the present case.In advancing his submissions for the appellants in the present case before your Lordships' House, Mr. Hill had of necessity to submit that the decision of the Court of Appeal in Fraser v. Mudge was wrong. In support of his submissions, which I have already summarised, he relied upon rule 30(2) of the Rules of 1982, which provides that at an inquiry into a charge against a prisoner he shall be given a full opportunity of presenting his own case. He stressed that a hearing before a board of visitors is a sophisticated hearing. In particular, he submitted, there is an oral hearing; a formal plea is entered; cross-examination is allowed and witnesses are called; the onus and standard of proof are the same as in a criminal trial; free legal aid is available; punishments are imposed; a plea in mitigation can be entered; and the board has greater powers of punishment than those exercised by magistrates' courts. He also, like others before him, invoked the St. Mary Abbotts case [1891] 1 QB 378 as authority for the proposition that each appellant had a common law right to appoint a lawyer as his agent to appear before the board of visitors on his behalf.I am unable to accept these submissions. I would first of all reject the argument founded upon the St. Mary Abbotts case as misconceived, for the very reasons given by Lyell J. in Pett v. Greyhound Racing Association Ltd(No. 2) [1970] 2 Q.B. 46, quoted above, that the case is not in point since it was concerned only with the making of a communication to an administrative body. But, so far as Mr. Hill's wider submissions are concerned, I am

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unable to accept his second proposition that any person charged with a crime (or the equivalent thereof) and liable to punishment is entitled as a matter of natural justice to legal representation. No doubt it is true that a man charged with a crime before a criminal court is entitled to legal representation - both before the Crown Court and (as a matter of statute) before a magistrates' court (see section 122 of the Magistrates' Courts Act 1980 and article 164(1) of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. No. 1676) (N.I. 26)). These statutory provisions derive from section 2 of Prisoners' Counsel Act 1836 (6 & 7 Will. 4, c. 114) (enacted to reform the law following the decision of the Court of King's Bench in Collier v. Hicks (1831) 2 B. & Ad. 663) and section 9 of the Petty Sessions (Ireland) Act 1851 (14 & 15 Vict. c. 93). No doubt it is also correct that a board of visitors is bound to give effect to the rules of natural justice. But it does not follow that, simply because a charge before a disciplinary tribunal such as a board of visitors relates to facts which in law constitute a crime, the rules of natural justice require the tribunal to grant legal representation. Indeed, if this were the case, then, as Roskill L.J. pointed out in Fraser v. Mudge [1975] 1 W.L.R. 1132, exactly the same submission could be made in respect of disciplinary proceedings before the governor of a prison. Mr. Hill was at pains to escape from this conclusion by attempting to distinguish between a governor and a board of visitors, on the basis that there was no right of legal representation before the governor but an absolute right to legal representation before the board of visitors. I for my part am unable to accept this distinction. Each, both governor and board of visitors, is exercising a disciplinary jurisdiction; and, as the Rules of 1982 clearly demonstrate, each may do so in respect of offences against discipline which could in law constitute criminal offences. Each must also be bound by the rules of natural justice. The difference between them is not so much a legal as a practical difference. The jurisdiction exercised by the governor is of a more summary nature, and should properly be exercised with great expedition; furthermore the punishments which he can award are limited to those set out in rule 32 of the Rules of 1982 , though he can refer the matter to the Secretary of State (and, through him, to a board of visitors) under rule 33(l)(e) if he considers that it may be desirable that a more severe punishment should be awarded. In the nature of things, it is difficult to imagine that the rules of natural justice would ever require legal representation before the governor. But though the rules of natural justice may require legal representation before a board of visitors, I can see no basis for Mr. Hill's submission that they should do so in every case as of right. Everything must depend on the circumstances of the particular case, as is amply demonstrated by the circumstances so carefully listed by Webster J. in Reg, v. Secretary of State for the Home Department, Ex parte Tarrant [1985] 1 Q.B. 251 as matters which boards of visitors should take into account. But it is easy to envisage circumstances in which the rules of natural justice do not call for representation, even though the disciplinary charge relates to a matter which constitutes in law a crime, as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to wholly unnecessary waste of time and money, contrary to the public

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interest. Indeed, to hold otherwise would not only cause injustice to prisoners; it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so, for the punishments liable to be imposed do not depend upon any such distinction.It remains for me, however, to consider a submission of Mr. Hill founded upon the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). Article 6(3) of the European Convention provides:
"Everyone charged with a criminal offence has the following minimum rights: ... ( c ) to defend himself in person or through legal assistance of his own choosing ..."
It was the submission of Mr. Hill that, under that provision, as interpreted by the European Court of Human Rights in Campbell and Fell v. United Kingdom (1984) 7 E.H.R.R. 165, the appellants in the present case were entitled to legal representation before the board of visitors, and that in this respect the European Convention and the common law are harmonious.It is to be observed that, under article 6 of the Convention, a citizen is given the right to defend himself through legal assistance of his own choosing where he is charged with a criminal offence. If that provision were to be given a strict interpretation, it would lead to its application in all disciplinary proceedings where the facts charged constituted in law a crime; and, in the context of prison discipline, this would be equally applicable in disciplinary proceedings before a governor and in such proceedings before a board of visitors. It is not surprising, therefore, to discover that the provision has been the subject of interpretation by the European Court of Human Rights to ensure that its application does not exceed the bounds of common sense. This the court has achieved by imposing a restrictive meaning upon the expression "criminal offence" in article 6. So in Engel v. The Netherlands (No. 1) (1976) 1 EHRR 647 , a case concerned with military discipline, the court had this to say (in paragraph 82 of the judgment):
"In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent state, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various contracting states. The very nature of the offence is a factor of great import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the state may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government [of the Netherlands]. However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it

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did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the ’criminal ’ sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the contracting states and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so."These principles were applied by the court in the case of Campbell & Fell v. United Kingdom (1984) 7 E.H.R.R. 165, where it was stated, in paragraphs 70-72, at pp. 194-195:(1) that the first matter to be ascertained is whether or not the text defining the offences is in issue belongs, according to the domestic legal system, to criminal law, disciplinary law or both concurrently.(2) That, in any event, the indications so afforded by the national law have only a relative value; the very nature of the offence is a fact of greater import. In this connection, the court referred to the factor that some matters may be more serious than others, and that the illegality of some acts may not turn on the fact that they were committed in prison. However, the court then commented:
"The court considers that these factors, whilst not of themselves sufficient to lead to the conclusion that the offences with which the applicant was charged have to be regarded as 'criminal' for Convention purposes, do give them a certain colouring which does not entirely coincide with that of a purely disciplinary matter."
(3) That it is necessary to have regard to the nature and degree and severity of the penalty which might be incurred; and that deprivation of liberty was "in general" a penalty that belonged to the "criminal" sphere.Now in English law, the objective which is sought to be achieved is, in my opinion, indeed harmonious with article 6 of the Convention as interpreted by the court. It is only the technique which is different. In English law, we are fortunate in having available to us a discretionary power, so often employed when it is necessary to weigh the effect of different factors; and it is established that disciplinary tribunals have, in the exercise of their discretion, and having regard to a broad range of factors including those mentioned by the European Court, to decide whether natural justice requires that a person appearing before the tribunal should be legally represented. The European Court, being under the duty to apply principles embodied in the Convention, is striving, as I see it, to achieve the same flexibility by giving a liberal interpretation to the expression "criminal offence" in article 6. It follows that I cannot, for my part, see that recourse to the Convention can assist the appellants in the present case. The absolute right to legal representation now claimed by the appellants is not, as I understand the position, required by the Convention any more than it is required by English law.For these reasons I would dismiss both appeals.

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