Leech, R (on the Application of) v Parkhurst Prison [1988] UKHL 16

House of Lords
Between
Leech, R (on the Application of)AppellantParkhurst PrisonRespondent
Before
Lord Bridge of HarwichLord Fraser of TullybeltonLord Brandon of OakbrookLord AcknerLord Oliver of AylmertonDate 4 February 1988

LORD OLIVER OF AYLMERTON

[1]My Lords, The question raised by these appeals is whether the decision of a prison governor made in the exercise of the disciplinary powers conferred upon him by the Prison Rules 1964 over prisoners in his care is subject to review by the High Court pursuant to Order 53 of the Rules of the Supreme Court. The office of a governor of a prison is the creation of statute, currently the Prison Act 1952, which provides, in section 7(1), that every prison shall have "a governor . . . and such other officers as may be necessary." The statute itself tells us nothing of the duties to be fulfilled by the holder of the office. Section 47(1), however, provides that the Secretary of State may make rules "for the regulation and management of prisons . . . and for the classification, treatment, employment, discipline and control of persons required to be detained therein," and it is in the Prison Rules 1964 made under this power (as amended in 1974) that the relevant duties and powers of a prison governor are to be found. Subsection (2) of section 47 provides "Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case." Before passing to the rules reference should also be made to section 6 of the Act. In subsection (1) of that section, provision is made for the constitution of visiting committees in relation to prisons to which persons may be committed directly by a court. Subsection (2) of the section obliges the Secretary of State to appoint for every prison other than the prison mentioned in subsection (1) a board of visitors, of whom, not less than two shall be justices of the peace. Subsection (3) provides:
"Rules made as aforesaid shall prescribe the functions of visiting committees and boards of visitors and shall among other things require members to pay frequent visits to the prison and hear any complaints which may be made of the prisoners and report to the Secretary of State any matter which they consider it expedient to report; and any member of a visiting committee or board of visitors may at any time enter the prison and shall have free access to every part of it and to every prisoner."
Turning to the rules (as amended), they confer or impose upon the governor a variety of administrative or executive powers and duties. Examples are the duty to provide information regarding the provisions of the rules (rule 7), the duty to hear applications from prisoners requiring interview (rule 8), the duty to inform relatives in the event of illness or death (rule 19), the duty to take charge of prisoners' property (rule 41), power to provide special facilities for unconvicted prisoners (rule 25), power to permit additional visits or letters (rule 34), and power to order temporary confinement or restraint in cases of violent or refractory prisoners (rules 45 and 46). Rule 98 permits the governor, with the leave of the Secretary of State, to delegate his powers and duties to another officer. It should also be mentioned at this stage that, under rule 5, a prisoner serving a sentence of more than one month may be granted remission for good conduct up to, for practical purposes, one third of his sentence. It is common ground that such remission, although discretionary, forms part of a prisoner's normal and reasonable expectation. For present purposes, the critically important rules are those which concern disciplinary offences and which regulate the hearing and disposal of charges of infractions of prison discipline made against prisoners. These are contained in rules 47 to 56 (inclusive) and it is necessary to refer to them in a little detail. Rule 47 contains a list of 21 offences against discipline, ranging from mutiny and gross personal violence to idleness and disobedience of lawful orders. The list includes the general offence of offending "against good order and discipline" which has a particular relevance in the case of Prevot. Rules 48 and 49 are important and must be set out in full. They provide:
"48.(1) Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible. (2) A prisoner who is to be charged with an offence against discipline may be kept apart from other prisoners pending adjudication. (3) Every charge shall be inquired into in the first instance, by the governor. (4) Every charge shall be first inquired into not later, save in exceptional circumstances, than the next day, not being a Sunday or public holiday, after it is laid. 49.(1) Where a prisoner is charged with an offence against discipline, he shall be informed of 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."
Punishments for offences are provided for in rules 50, 51, and 52. It is unnecessary to recite these in detail. The general scheme of the rules is to divide offences into three categories, that is to say, offences simpliciter, graver offences (such as escape, assaulting an officer or violence to other persons) and especially grave offences (mutiny or incitement to mutiny or gross personal violence to an officer). In the case of the first category, the governor is empowered, by rule 50, to impose penalties ranging from a caution to forfeiture of remission for a period of up to 28 days. These penalties are strictly limited. For instance, forfeiture of privileges and stoppage of pay cannot exceed 28 days, exclusion from associated work cannot exceed 14 days, and cellular confinement cannot exceed three days. In the case of the graver offences which are dealt with in rule 51 the governor must, unless he dismisses the charge, inform the Secretary of State and, unless otherwise directed by him, refer the charge to the board of visitors. Under sub-rule (2) he has a discretion, where a prisoner is charged with serious or repeated offences for which the governor's potential awards under rule 50 appear inadequate, to refer the charge to the board of visitors after investigation. Sub-rules (3) and (4) of rule 51, provide as follows; "(3) Where a charge is referred to a committee or board under this rule, the Chairman thereof shall summon a special meeting at which not more than five nor fewer than two members shall be present. (4) The board so constituted shall inquire into the charge and, if they find the offence proved, shall make one or more of the following awards: . . " . ." There follows a list of possible penalties which may be imposed by the board of visitors and which correspond with those which may be imposed by the governor himself under rule 50, but with substantially higher ceilings on the length of time for which the penalties may continue. Thus, exclusion from associated work, stoppage of earnings and cellular confinement may be imposed for up to 56 days, and loss of remission for up to 180 days. In the case of the third category of especially grave offences the governor is again obliged by rule 52, to inform the Secretary of State and, unless otherwise directed, to refer the charge to the board of visitors. In this case, however, he has no power to dismiss the charge himself. The range of penalties which may be imposed is, for relevant purposes the same as that applicable under rule 51, save that forfeiture of remission is not limited to 180 days. Rule 55 empowers both the governor and the board of visitors to suspend awards of forfeiture of remission and to activate a suspended award, by whomsoever imposed. Thus circumstances may occur in which an adjudication by a governor may result not only in the award of a penalty on the scale provided by rule 50 but also in the activation of a much heavier penalty previously imposed by a board of visitors but suspended by them. Rule 56 is of some importance and requires to be set out in full. It provides:
"(1) The Secretary of State may remit a disciplinary award or may mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe. (2; Subject to any directions of the Secretary of State, the governor may remit or mitigate any disciplinary award. Thus it will be seen that, in relation to discipline, the governor and the board of visitors perform, in broad outline, substantially the same function, namely that of inquiring into and, if appropriate, imposing punishment for disciplinary offences. The differences lie only in the time-scale within which the functions are to be performed and the severity of the punishments which can be awarded. The events leading up to these appeals can be shortly summarised. In the case of the appellant Leech, who was at the material time serving a sentence of five years imprisonment in Parkhurst Prison, he was charged with a disciplinary offence, (being in possession of a device adapted for the smoking of a controlled drug) and appeared before the deputy-governor on 14 March 1985, when he pleaded not guilty. An adjourned hearing took place on 16 April 1985 when he was found guilty and awarded 28 days loss of remission. He petitioned the Secretary of State, complaining that he had been found guilty before being given the opportunity for which he had asked to cross examine a witness. The Secretary of State evidently considered the conviction unsafe and, in June 1985, remitted the penalty under rule 56, although for some unexplained reason this was not noted upon the prisoner's prison record until very much later. Even when it was entered, the reference to the conviction before the deputy-governor remained, the view then taken by the Home Office being that the Secretary of State had no power to quash the conviction, his power under rule 56 being only to remit or mitigate the award. That is a matter of some moment because, as your Lordships have been told, the prison record not only operates during the period in which the prisoner remains detained in the prison but follows him from prison to prison and is preserved and may be referred to in the event of his offending again and serving a further term of imprisonment. It having come to the notice of this appellant that the conviction still remained on his record, he petitioned the Secretary of State on 8 October 1985 to have it removed. On 23 December 1985 the Secretary of State replied stating that he had no power to remove the adjudication from the record. The appellant then applied for leave to apply for judicial review. That was refused by Mann J. on 22 April 1986 but a renewed application for leave to the Court of Appeal was granted on 10 September 1986. At the same time the Court of Appeal, in the light of the previous decision Reg. v. Deputy Governor of Camphill Prison, Ex parte King [1985] 1 Q.B. 735 (referred to below), felt bound to dismiss the substantive application for judicial review. Leave to appeal was granted to your Lordships' House on 6 November 1986, at which date the appellant had been released. It appears that he is now serving a further sentence of imprisonment. In the case of the appellant Prevot, he was at the material time serving a sentence of 14 years in Long Lartin prison. On 31 December 1986 he appeared before the deputy-governor of the prison charged with offending against good order and discipline. That charge arose out of alleged indecent conduct between the appellant and his wife in the course of a prison visit. Initially, he declined to plead. After an adjournment, the adjudication was resumed on 6 December. The appellant then sought to have the charge dismissed on the ground that he had been charged under the wrong paragraph of rule 47. That was refused and he then applied to call 18 witnesses and a prison officer. That application was also refused. He was found guilty and awarded 21 days loss of remission and six days exclusion from associated work. He petitioned the Secretary of State but his petition was rejected. The appellant then applied for leave to apply for judicial review both of the deputy-governor's adjudication and of the Secretary of State's decision. On 18 May 1987 Stuart-Smith J. refused leave as regards the adjudication of the deputy-governor but granted leave as regards the decision of the Secretary of State. A renewed application for leave in relation to the adjudication of the deputy-governor was made to the Court of Appeal on 15 June 1987. The Court granted the application for leave but dismissed the substantive application and granted leave to appeal to your Lordships' House. In both cases the appellants claim, rightly or wrongly, that the proceedings before the deputy-governors were not conducted fairly and that they were denied a proper opportunity to present their respective cases before being found guilty and penalised. That is accepted in the case of Leech and it may or may not be so in the case of Prevot. Your Lordships do not have ail the material required to determine that question and are not called upon to adjudicate on it. What is in issue is not the obligation of the prison governor, in adjudicating upon a disciplinary charge, to act fairly and in accordance with the principles of natural justice, which is accepted by the respondents, but the question of whether, even assuming the want of fairness in the adjudication, it can be made the subject-matter of inquiry and review in proceedings under Order 53 at all. The issue is thus jurisdiction, not discretion. The principles governing the jurisdiction of the High Court to review decisions of statutory bodies are now well established and scarcely need reiteration. It is clear, in particular, since the decision of your Lordships house in Ridge v. Baldwin [1964] AC 40 , that the susceptibility of a decision to the supervisory jurisdiction of the court does not rest upon some fancied distinction between decisions which are "administrative" and decisions which are "judicial" or "quasi-judicial"
. The principles have been reviewed in the authoritative exegesis of Lord Diplock in O'Reilly v. Mackman [1983] 2 AC 237 and are encapsulated in the following passage from his speech at p. 279:
"The pre-1977 Order 53, like its predecessors, placed under considerable procedural disadvantage applicants who wish to challenge the lawfulness of a determination of a statutory tribunal or any other body of persons having legal authority to determine questions affecting common law or statutory rights or obligations of other persons as individuals. It will be noted that I have broadened the much cited description by Atkin L.J. in Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B. 171, 205 of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative remedies (which in 1924 then took the form of prerogative writs of mandamus, prohibition, certiorari, and quo warranto) by excluding Atkin L.J.'s limitation of the bodies of persons to whom the prerogative writs might issue, to those "having the duty to act judicially."
For the next 40 years this phrase gave rise to many attempts with varying success, to draw subtle distinctions between decisions which were quasi-judicial and those that were administrative only. But the relevance of arguments of this kind was destroyed by the decision of this House in Ridge v. Baldwin [1924] A.C. 40, where again the leading speech was given by Lord Reid. Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made." That a board of visitors called upon to adjudicate upon a disciplinary offence is a body authorised and required to make a decision of the kind described by Lord Diplock in the passage quoted is, in my judgment, incontrovertible. That the decision of such a board can properly be made the subject-matter of a judicial review was indeed established as long ago as 1978 in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425, a decision of the Court of Appeal, which was expressly approved in O'Reilly v. Mackman [1983] 2 AC 237 . No challenge to the correctness of that decision has been raised before your Lordships and the argument of the respondents has rested, as indeed it has had to rest, upon distinguishing an adjudication by a prison governor from an adjudication by a board of visitors. That was a distinction which, in the case of Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1978] Q.B. 678 at first instance, Lord Widgery had found himself unable to draw. He felt unable to entertain the possibility of the adjudication by a prison governor being open to review by the court and he was thus led to the conclusion that a review of an adjudication by a board of visitors was likewise impossible. The Court of Appeal [1979] Q.B. 425 took a different view, Shaw L.J. being of the opinion that the two cases were indistinguishable in principle and that decisions of prison governors and of boards of visitors were equally the subject-matter of judicial review. Megaw L.J. and (though perhaps less decisively) Waller L.J., thought that the position of the governor of the prison was clearly distinguishable from the position of the board of visitors and that distinction in the case of Megaw L.J., formed, as I read his judgment, part of the ratio of his decision. The grounds for drawing the distinction are contained in the following passage from his judgment (at pp. 447 and 448):
"To my mind, contrary to the submission put forward by the board of visitors in their respondents' notice, while the board of visitors have numerous other functions connected with the administration of the prison, their function in acting as a judicial tribunal in adjudicating on charges of offences against discipline, and in making awards consequent on findings of guilt, is properly regarded as a separate and independent function, different in character from their other functions. It is materially different, in my judgment, from the function of the governor in dealing with alleged offences against discipline. While the governor hears charges and makes awards, his position in so doing corresponds to that of the commanding officer in military discipline or the schoolmaster in school discipline. His powers of summary discipline are not only of a limited and summary nature but they are also intimately connected with his functions of day-to-day administration. To my mind both good sense and the practical requirements of public policy make it undesirable that his exercise of that part of his administrative duties should be made subject to certiorari."
To similar affect was Waller L.J., at p. 462:
"Nevertheless I find it difficult to visualise any circumstances in which certiorari would lie against the governor. His decisions are an intimate part of the disciplinary system of the prison. At the lowest level discipline is maintained in accordance with rule 2. It is the face-to-face discipline which is maintained by the prison officer on the landing, in the prison yard or in the prison workshops. Example and leadership are required, and such firmness as may be necessary. It is only when this level of control fails in some way that the governor is brought into the picture. Rule 47 sets out 21 specific offences against discipline of varying degrees of seriousness. Every charge has first to be inquired into not later than the next day after it is laid (other than a Sunday or public holiday) (see rule 48(4)) and no doubt in the majority of the less serious offences is disposed of. I agree with the passage and the judgment of Lord Widgery C.J. which I have already quoted, in which he emphasises the importance of the officer charged with maintaining discipline not being interfered with by the court. The important question that we have to consider, however, is whether this principle extends to boards of visitors."
The contrary view was expressed by Shaw L.J. thus at p. 455:
"Now the rights of a citizen, however circumscribed by a penal sentence or otherwise, must always be the concern of the courts unless their jurisdiction is clearly excluded by some statutory provision. The courts are in general the ultimate custodians of the rights and liberties of the subject, whatever his status and however attenuated those rights and liberties may be as the result of some punitive or other process. Although rule 7(1) impliedly enables a prisoner to petition the Secretary of State in respect of some grievance or deprivation, there is nowhere in the Act of 1952 or the rules made under it, any indication that such rights, however attenuated, as he may still possess are not cognisable in a court of law. Once it is acknowledged that such rights exist the courts have function and jurisdiction. It is irrelevant that the Secretary of State may afford redress where the rules have been infringed or their application has been irregular or unduly harsh. An essential characteristic of the right of a subject is that it carries with it a right of recourse of the courts unless some statute decrees otherwise. What should be the nature and measure of the relief accorded must be a matter for the courts. Public policy or expediencey as well as merits may be factors to consider and they may influence the answer to any application for relief; but to deny jurisdiction on the grounds of expediency seems to me, with all respect to the views expressed in the judgment of Lord Widgery C.J. in the Divisional Court [1978] Q.B. 678, to be tantamount to abdicating a primary function of the judiciary."
Shaw L. 3. continued at p. 456 as follows:
"It may be inexpedient or perhaps stultifying in relation to prison discipline that recourse to the courts should be available to a prisoner who advances some capricious complaint as to the manner in which he has been disciplined. There are no finite limits to the extent of the jurisdiction of the High Court in this regard. The practical limits are sought in the exercise of the power to grant relief which is always a matter of discretion . . . ." "
It is readily understandable that discipline in a prison may be weakened if its exercise can be challenged in the courts; but until Parliament chooses to enact that the proceedings of a board of visitors in their disciplinary function, however conducted, shall be free from supervision or control by the High Court, the scope of their inherent jurisdiction must, in my view, include such proceedings. I do not for my part find it easy, if at all possible, to distinguish between the disciplinary proceedings conducted by a board of visitors and those carried out by a prison governor. In each case the subject-matter may be the same; the relevant fundamental regulations are common to both forms of proceeding. The powers of a governor as to the award he can make (which really means the punishment he can impose) are more restricted than those of a board of visitors in a corresponding situation; but the essential nature of the proceedings as defined by the Prison Rules is the same. So, in nature if not in degree, are the consequences to a prisoner." Despite the cogently argued views of Shaw L.J., the proposition that an adjudication by a prison governor was not susceptible to judicial review, which was not, of course, directly an issue in St. Germain's case [1979] Q.B. 425, appears to have remained unchallenged until 1984. However, in Reg. v. Deputy Governor of Camp Hill Prison, Ex party King the point arose directly. It resulted in a division of opinion in the Divisional Court whose decision is unreported. Both Kerr L.J. and Glidewell J. agreed that in the case before them the application for judicial review failed on the merits, but they were divided upon the question whether the application could properly be entertained at all. Kerr L.J., like Shaw L.J. in St. Germain , could find no logical distinction between the case of the prison governor and the board of visitors and would have held that the court had jurisdiction. Glidewell J. took the opposite view. He said:
"As to the nature of the governor's decision and the process by which he makes it, it is self-evident that in a prison the maintenance of good order and discipline is of fundamental importance. It follows in my view that when the governor is holding an inquiry into and adjudicating upon a disciplinary offence, he is exercising a part of his overall function of governing the prison, not a separate and distinct function. In this way, his exercise of the powers of summary discipline can be distinguished from the exercise by the board of visitors of their judicial function."
In the Court of Appeal [1985] Q.B. 735 the view of Glidewell J. prevailed and it was held in terms, that the court had no jurisdiction to entertain the application. Substantially the ground for the decision was that, for the smooth administration of the prison system, public policy required that any challenge to the adjudication of the prison governor should be dealt with entirely within the framework of the prison system and that the responsibility for overseeing a governor's decisions should rest solely with the Secretary of State who, under section 4(2) of the Prison Act 1952, has the responsibility for ensuring that the provisions of the Act and of any rules made thereunder are duly complied with. Thus it was that, in the instant appeals, the Court of Appeal, conceiving rightly that it was bound by the decision in King 's case, dismissed both the substantive applications. Moreover, in Reg. v. Governor of the Maze Prison, ex Parte McKiernan (as yet unreported) the Court of Appeal of Northern Ireland reached a conclusion, in substantially indistinguishable circumstances, diametrically opposed to that arrived at by the Court of Appeal in England in King 's case [1985] 1 Q.B. 735. Both Lord Lowry C.J. and O'Donnell L.J. found themselves incapable of discerning any logical distinction between adjudications between a prison governor and adjudications by a board of visitors. Indeed it was conceded before them by the respondents that there was no essential difference. It followed, therefore, that unless some other reason could be adduced for excluding the former from judicial review, the decision in St. Germain's case [1979] Q.B. 425 necessarily involved that the governor's decisions should equally be reviewable. The only reason suggested which had any application in Northern Ireland was public policy and that, the court held, was a matter for the legislature and not the court. There was, in any event, an equally important consideration of public policy enshrined in the decision of this House in Raymond v. Honey [1983] 1 AC 1 that a citizen should have unimpeded access to the courts unless such right has been expressly removed by statute. There is thus, as the matter now comes before your Lordships, a clear conflict of view between the Court of Appeal in England and the Court of Appeal in Northern Ireland. My Lords, I am sensible of the inconvenience which may be occasioned in the administration of the prison system by over-frequent and possibly capricious applications for review by the court of decisions of prison governors. Those who are detained in custody are not usually slow to exercise any available right to challenge established authority. The conclusion that such disciplinary decisions are open to challenge in the High Court is, therefore, one at which I arrive with a degree of reluctance. Nevertheless, as Lord Atkin observed in General Medical Council v. Spackman [1943] A.C. 627, 638, "convenience and justice are often not on speaking terms" and I have, for my part, been compelled to the conclusion that the reasoning of the Court of Appeal in Northern Ireland in the McKiernan case and of Kerr L.J. in King's case [1985] 1 Q.B. 735 is to be preferred to that of the Court of Appeal in England in the latter case. It is not in contest that the decision of the Secretary of State under rule 56 is a decision which is subject to the supervision of the court by way of judicial review. It is, however, submitted on behalf of the respondents that up to that point there is, as it were, a self-contained administrative system into which the court should not and must not trespass, the interests of justice being adequately served by the amenability to the court's supervision of the person ultimately responsible for the proper administration of the system, including the fair and just enforcement of discipline within that system, i.e. the Secretary of State. I have not felt able to accept this, for the starting point of the inquiry appears to me to be that the prison governor is not a mere servant or alter ego of the Secretary of State but a statutory officer performing statutory duties. Many of those duties are of a purely administrative nature and involve no adjudicatory function at all. But the function of adjudicating upon charges of infractions of prison discipline is not one which involves merely the performance of a duty concerning some private right, as for instance in the case of the governing body of the social club or a trade union. It is a public function which affects the liberty and, to a degree, the status of the persons affected by it. As such it must, as it seems to me, be subject to the general common law principle which imposes a duty of procedural fairness when a public authority makes a decision not of a legislative nature affecting the rights, privileges and interests of individuals. It is, in my judgment, no answer to say that a decision made in exercise of such a function is "administrative" or "disciplinary" or that it cannot be separated from the overall function of prison management, and, as I have already observed, it is not contended that in making such a decision the governor is absolved from any duty to act fairly or to observe the principles of natural justice. All that is said is that if he fails in that duty, his failure cannot be challenged through the machinery of the court, the only control over unfairness, prejudice or caprice being that exercisable by the Secretary of State. I start, therefore, from the position that the decision of the governor of a disciplinary charge against a prisoner is one which has ail the attributes of the kind of decision to which Lord Diplock referred in the passage already cited from his speech in O'Reilly v. Mackman [1983] 2 AC 237 and which, therefore, is prima facie one which is amenable to the court's jurisdiction to review. One asks, therefore, what is there, if anything, in the nature of such a decision or the circumstances in which it falls to be made that ousts the jurisdiction of the court? - for it is, I think, quite clear - and, indeed, this was, as I read the decision, accepted by the Court of Appeal in King's case [1985] Q.B. 735 -that there is no relevant distinction between an adjudication by a prison governor and one by a board of visitors, so far as concerns the application of the ordinary rules of fairness, the effect on the subject, or the consequences of improper performance of the duties cast upon them respectively, except purely one of degree. Lawton L.J. in King's case perceived a functional distinction between the two types of adjudication. The governor's function, including that of adjudicating upon disciplinary charges, he regarded as exclusively managerial. Contrasting the position of the board of visitors, he observes, at p. 749:
"They have no managerial functions. They do not have to maintain discipline from day to day. They are an independent and impartial body, whose function in relation to disciplinary offences is essentially judicial. Such judicial functions as a governor has are but one aspect, and a minor one, of his managerial functions. It would be difficult to separate his judicial functions from his management ones without impairing his ability to discharge the latter. In my judgment, as a matter of common sense and public policy the court should not try to do so."
This was, I think, in substance a reiteration of the position adopted by Megaw and Waller L.JJ. in St. Germain's case [1979] Q.B. 425 and exemplified in the passage from the judgment of Megaw L.J. in that case at p. 447 to which I have already referred. My Lords, I have not, for myself, felt able to subscribe to this. Whilst it is no doubt perfectly true that the governor's primary responsibility and concern is the administration of the prison and that the maintenance of discipline is one aspect of that administration, this does not appear to me to provide any ground, except purely as a matter of policy and convenience, for excluding the supervisory jurisdiction of the court, for it is not the label of "administration" or "management" that determines the existence of jurisdiction but the quality and attributes of the decision. In the ultimate analysis the decision in King 's case rested upon policy and convenience. Neither Griffiths nor Browne-Wilkinson L.JJ. felt able to point to any logical distinction between an adjudication by a governor and an adjudication by a board of visitors, but they felt impelled by considerations of what they regarded as the unacceptable consequences of the susceptibility of a governor's decision to judicial review to deny jurisdiction in that case. They felt able to justify the implication of such a limitation as a matter of public policy by the consideration that, by section 4(2) of the Act of 1952, Parliament had cast upon the Prison Commissioners the duty to examine "the conduct of officers, the treatment and conduct of prisoners and all other matters concerning management of prisons" and to "ensure that the provisions of this Act and of any rules made under this Act are duly complied with." That duty was, in 1963 transferred to the Secretary of State, pursuant to the Prison Commissioner's Dissolution Order 1963 (S.I. 1963 No. 597). Thus, it was said, a prisoner aggrieved by an excess or abuse of power by the governor was not, by reason of the absence of any jurisdiction in the court to review the governor's decisions, deprived of a remedy. It was open to him to petition the Secretary of State who had the duty and power to correct errors under the section and whose decision, if reached in breach of his implied duty under the section to act fairly, could itself be impeached by judicial review. For my part, I have not found this reasoning persuasive. To begin with, I am not by any means convinced that the section did, on its true construction, confer upon the Prison Commissioners, by virtue of a general injunction to ensure that the rules are duly complied with, any power to overrule or to correct a prison governor's disciplinary adjudication, and the Secretary of State cannot derive from this section any greater power than was originally conferred upon the Prison Commissioners. But even assuming that the section has the effect suggested, it does not, to my mind, really touch the central question. An alternative remedy for abuse or excess, whether effective or not, may be a factor, and a very weighty factor, in the assesment of whether the discretion which the court undoubtedly has to grant or refuse judicial review should be exercised. But it cannot, as I see it, bear on the question of the existence of the jurisdiction. Equally, if it is prayed in aid as a consideration in favour of declaring as a matter of public policy, that the common law jurisdiction prima facie applying ought not to exist in the case of this particular category of decision, there appears to me to be a convincing answer, as was pointed out by Lord Lowry C.J. in McKiernan 's case, in the countervailing consideration of public policy expressed in the speech of my noble and learned friend Lord Bridge of Harwich, in Raymond v. Honey [1983] 1 AC 1 when he said, at p. 14F-G:
"I gratefully adopt the summary of the facts set out in the speech of my noble and learned friend Lord Wilberforce, and his statement of the two basic principles to be applied; first, that any act done which is calculated to obstruct or interfere with the course of justice, or the lawful process of the courts, is a contempt of court; secondly, that a convicted prisoner in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. To these I would add a third principle, equally basic, that a citizen's rights to unimpeded access to the courts can only be taken away by express enactment . . . . "
Whatever else section 4(2) may do, it certainly does not constitute a clear and unambiguous expression of the will of Parliament that the prima facie right to apply for judicial review should be removed. Mr. Laws has not sought to argue that the courts should dictate that, as a matter of public policy, the jurisdiction in judicial review should be excluded - a matter which, as I understand his argument, he concedes is properly a question for Parliament. What he submits is that it is wrong to ask what he describes as the "static" question - is the body whose adjudication it is sought to review a public body whose decisions affect the rights of the subject? The true question, he submits, is what he describes as the "dynamic" one - is the court's intervention needed in order to secure fairness to the subject? In suggesting a negative answer to that question, Mr. Laws submits that the Act and the rules (and, particularly, section 4(2) and rule 56) indicate what may be described as a self-contained or hermetic system within which the whole range of prison administration is kept within the purview of the Secretary of State. He does not and indeed cannot suggest that this amounts to the distinct expression of a parliamentary intention that decisions made by governors should be exempted from the ordinary jurisdiction of the court, but he suggests that the approach to be adopted to any intervention of the court's jurisdiction to review is to be determined by first asking an initial question which lies at the threshold - is the court's intervention needed? Having regard to the self-contained nature of the system of prison administration, he answers that question in the negative and, hence, as a corollary submits that the jurisdiction, because not needed, does not exist. There is in my judgment, a basic fallacy in this approach, quite apart from the fact that it is entirely unsupported by authority. It has never previously, so far as I am aware, been suggested that the mere existence of an alternative remedy, of itself and by itself, ousts the jurisdiction of the court, though it may be a powerful factor when it comes to the question of whether the discretion to review should be exercised. I can see, of course, that if the existence of the separate and self-contained remedy is a conclusive factor against the exercise of discretion in every case, so that the discretion could never be exercised in favour of judicial review, that is tantamount to saying that, for practical purposes, the jurisdiction does not exist. But I find it quite impossible to attribute such a result to the statutory framework governing prison administration and it would, in any event, equally have the effect of ousting the jurisdiction in the case of a board of visitors who are equally a part of the administrative system. As has already been observed, no challenge is made to the correctness of the decision in St. Germain's case [1979] 1 Q.B. 425. An alternative argument seeks to distinguish between the governor and the board of visitors. First it is said that whereas the governor is part of the prison system the board of visitors stands outside it and is exercising a pastoral rather than a management function. Secondly it is said that governor's adjudications are expected to be more summary and "on-the-spot" than those of the board. I do not find that either of these distinctions really helps the respondents. Granted that, in addition to their adjudicatory functions, the board of visitors fulfil a pastoral role, this leads nowhere, for, whether "pastoral" or not, in essence both the visitors and the governor are exercising, in relation to disciplinary charges, the same disciplinary jurisdiction. As to the proposition that the rules provide for a more summary procedure in the case of governors' adjudications, this may be true, but again it has no bearing upon the nature of the jurisdiction being exercised or upon the need for procedural fairness in exercising it. This submission is, in fact, merely to advance in a slightly different form the analogy of the commanding officer or the schoolmaster propounded in the judgment of Megaw L.J. in St. Germain's case [1979] 1 Q.B. 429. In common with Lord Lowry C.J. I do not find either analogy convincing. The quasi-parental relation of a schoolmaster to his pupil is, in my judgment, no analogy at all, and as to the case of the commanding officer, I entertain, with Lord Lowry C.J., some doubt whether it can be said to be either firmly established by authority or universally self-evident that judicial review can never in any circumstances lie in respect of his disciplinary adjudication. That question, in any event, can be better determined if and when it arises. There are no doubt good reasons why, in the interest of administrative convenience, Parliament, in enacting the Prison Act and conferring upon the Secretary of State the power to make rules for the management of prisons, could properly have taken the course of expressly excluding a prisoner from access to the courts while serving his sentence. But Parliament has not done so and I do not, for my part, think that it could be right for your Lordships in the name of pragmatism or of public policy, to take the step which Parliament omitted to take and, by denying in practice a jurisdiction which cannot be denied in logic, to impose in the case of a particular class of decision-maker an administrative substitute for the supervision of the court. Such a substitute would not in fact, as I believe, be an effective substitute and that, by itself, may provide the answer to Mr. Law's dynamic question. A review of a governor's decision by, effectively, a civil servant with access only to the paper record, even assuming that the Secretary of State has the power, which he has previously disclaimed, not only to remit an award but to expunge a conviction, must in its very nature be less than satisfactory in many cases. One has to postulate, for the question to be a live one at all, that there has been an error of law or an abuse or excess of power - one hopes an unlikely occurrence, but that is the postulate. That may and almost certainly will in some cases involve questions of fact which are inevitably more appropriately dealt with by the court. It is no answer to say that the Secretary of State's decision is itself subject to review for upon such a review the court would not have the opportunity of sifting the facts in relation to the original governor's decision but only those in relation to the decision of the Secretary of State immediately under review. The consequences of the possibility of review by the court were described by Browne-Wilkinson L.J. in the Court of Appeal in King 's case [1985] 1 Q.B. 735 as "frightening," but I found myself less and less impressed by this consideration as the argument progressed. The decision in St. Germain's case [1979] 1 Q.B. 425 that adjudications by boards of visitors could be the subject-matter of judicial review has not, so far as I am aware, resulted in a torrent of capricious or frivolous applications. Your Lordships have been told that there have been since the decision in St. Germain some 70 cases of applications for leave to apply for judicial review in the case of visitors' adjudications in which leave has been granted. Your Lordships have also been told that in Northern Ireland, admittedly with a very much smaller prison population than exists in England, there have been some 26 successful applications for leave since the decision in McKiernan in June 1985. It appears that eight of those applications terminated in an order for judicial review of a decision. For my part, therefore, I think that the spectre of the courts being flooded with frivolous applications for leave to apply for judicial review is likely to be more illusiory than real. That sort of prediction can, of course, always be wrong, but if it is, the remedy, in the end, lies in the hands of the courts or, in the ultimate analysis, with Parliament. To say that jurisdiction exists to entertain an application for leave goes nowhere towards establishing that the discretion to grant judicial review will necessarily be exercised and, for my part, I agree with Shaw L.J. in St. Germain when he observed that the practical limits are to be sought in the exercise of the power to grant relief which is always a matter of discretion. In my judgment, the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, upon the nature and consequences of the decision and not upon the personality or individual circumstances of the person called upon to make the decision. I have, in the end of all, found myself unpersuaded not only that the position of a prison governor in relation to disciplinary adjudications can be logically distinguished from that of a board of visitors, but also that any sound or convincing reasons exist for holding that such adjudications should be treated so far as judicial review is concerned, in any different way. I find the judgments of Shaw L.J. in St. Germain and of Kerr L.J. in the Divisional Court in King , wholly persuasive. Since writing this speech I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Bridge of Harwich. I entirely concur with everything that he has said and agree that the appeal should be allowed, with the consequences that he has indicated. Date: 4 February 1988 Before: Lord Bridge of Harwich Lord Fraser of Tullybelton Lord Brandon of Oakbrook Lord Ackner Lord Oliver of Aylmerton - - - - - - - - - - - - Between: REGINA v. DEPUTY GOVERNOR OF PARKHURST PRISON (RESPONDENT) EX PARTE LEECH (A.P.) (APPELLANT) REGINA v. DEPUTY GOVERNOR OF LONG LARTIN PRISON (RESPONDENT) EX PARTE PREVOT (A.P.) (APPELLANT) (CONJOINED APPEALS) - - - - - - - - - - - - - - - - - - - - - - - - Judgment LORD BRIDGE OF HARWICH My Lords,[2]These two appeals raise the important question whether the court has jurisdiction to entertain an application for judicial review of an adjudication by a prison governor on a charge against a prisoner of a disciplinary offence and an award of punishment for the offence under the Prison Rules 1964 (S.I.64 no. 388). The Court of Appeal in Reg. v. Deputy Governor of Camphill Prison, Ex parte King [1985] Q.B. 735 held that there was no such jurisdiction. But the Court of Appeal in Northern Ireland took the opposite view in accepting jurisdiction to review a governor's adjudication and award under the corresponding rules applicable in Northern Ireland; Reg, v. Governor of the Maze Prison, Ex parte McKiernan (5 June 1985, unreported). This is the conflict which must be resolved.[3]The appellant Leech was serving a term of imprisonment for five years due to expire, apart from remission, on 9 May 1987. In March 1985 at Parkhurst Prison he was charged with an offence under rule 47(7) of the Rules of 1964. At an adjourned hearing on 16 April 1985 a deputy governor found the offence proved and awarded 28 days loss of remission. The appellant petitioned the Secretary of State on the ground of breaches of the rules of natural justice invalidating the adjudication. He also wrote to Lord Avebury, who took the case up with the Home Office. A letter from the Minister of State at the Home Office to Lord Avebury dated 25 June 1985 recorded that the ajudicating governor had found the appellant guilty before giving him any opportunity to make his defence or to cross-examine the reporting officer. The Minister of State added:
"It seems clear that his defence had been prejudiced. I therefore consider the finding of guilt unsafe and 1 have decided to exercise the Secretary of State's power under Prison Rule 56(1) to remit the punishment made against Mr. Leech."
[4]A copy of this letter was sent to the governor of Parkhurst Prison on 3 July 1985 with instructions to inform the appellant and amend his record. The appellant was duly informed and his prospective release date was suitably amended, but the entry in his prison record relating to the adjudication and award remained unaltered.[5]On 8 October 1985 the appellant presented a further petition to the Secretary of State asking that the conviction for the disciplinary offence be removed from his record. A pro forma reply from the Home Office dated 23 December 1985 instructed the prison governor to inform the appellant as follows:
"Prison Rule 56(1) does not give the Secretary of State any power to quash a finding of guilty; that power rests with the courts. The recording system does not allow the removal of entries from a prisoner's record but these will be annotated as appropriate, to show a not guilty finding, and any action taken by the Secretary of State under Prison Rule 56(1) or by the courts to quash a finding."
[6]The appellant thereupon sought leave to apply for judicial review which was refused by Mann J. on 22 April 1986. On 10 September 1986 the Court of Appeal granted leave to apply, but refused the substantive application, as they were bound by King's case [1985] Q.B. 735 to do. It was not until 18 September 1986 that a note was entered on the appellant's prison record to the effect that the 28 days remission he had lost by the award in April 1985 had been "restored."[7]On 20 October 1986 the appellant was released from prison. On 6 November 1986 your Lordships' House granted leave to appeal. At the hearing of the appeal your Lordships were informed that the appellant Leech is now serving a further sentence of imprisonment imposed in July 1987.[8]The appellant Prevot was serving a term of imprisonment of 14 years due to expire, apart from remission, on 15 March 1997. On 30 December 1986 at Long Lartin Prison he was charged with an offence against good order and discipline under rule 47(20) of the Rules of 1964 in that "he was being masturbated by his female visitor." The lady visiting him was his wife. At an adjourned hearing on 7 January a deputy governor found the case proved and awarded 21 days loss of remission and six days exclusion from associated work. On 16 January and 10 February 1987 the Regina v. Deputy Governor of Parkhurst Prison (Respondent) ex parte Leech (A.P.) (Appellant) Regina v. Deputy Governor of Long Lartin Prison (Respondent) ex parte Prevot (A.P.) (Appellant)[9]My Lords,[9]I beg to move that the Report of the Appellate Committee be now considered.[10]The Question is:-[11]That the Report of the Appellate Committee be now considered.[12]As many as are of that opinion will say "Content". The contrary "Not-content".[13]The Contents have it. (Their Lordships will indicate what Order they would propose to make.)[14]My Lords,[14]I beg to move that the Report of the Appellate Committee be agreed to.[15]The Question is:-[16]That the Report of the Appellate Committee be agreed to.[17]As many as are of that opinion will say "Content". The contrary "Not-content".[18]The Contents have it. Regina v. Deputy Governor of Parkhurst Prison (Respondent) ex parte Leech (A.P.) (Appellant) Regina v. Deputy Governor of Long Lartin Prison (Respondent) ex parte Prevot (A.P.) (Appellant)[19]The Question is:-[20]That in the case of Leech the Orders of the Court of Appeal of the 10th of September 1986 and of Mr. Justice Mann of the 22nd of April 1986 be reversed, save as to Legal Aid Taxation, and that the adjudication of the Deputy Prison Governor of Her Majesty's Prison, Parkhurst, made on the 16th of April 1985 be quashed.[21]As many as are of that opinion will say "Content". The contrary "Not-content".[22]The Contents have it.[23]The Question is:-[24]That in the case of Prevot the Orders of the Court of Appeal of the 15th of June 1987 and of Mr. Justice Stuart-Smith of the 18th of May 1987 be set aside, save as to legal aid taxation, and that the cause be remitted back to the Queen's Bench Division for determination.[25]As many as are of that opinion will say "Content". The contrary "Not-content".[26]The Contents have it.[27]The Question is:[28]That in both appeals the Respondents do pay to the Appellants their costs here and below.[29]As many as are of that opinion will say "Content". The contrary "Not-content".[30]The Contents have it. [N.B.] Orders for Legal Aid taxation will be made] Regina v. Deputy Governor of Long Lartin Prison (Respondent), ex parte Prevot (A.P.) (Appellant) JUDGMENT Die Jovis 4° Februarii 1988[31]Upon Report from the Appellate Committee to whom was referred the Cause Regina against Deputy Governor of Long Lartin Prison ex parte Prevot (A.P.), That the Committee had heard Counsel on Tuesday the 17th, Wednesday the 18th, Thursday the 19th, Monday the 23rd and Tuesday the 24th days of November last upon the Petition and Appeal of Gaston Prevot, currently detained at Her Majesty's Prison, Long Lartin, South Littleton, Evesham, Worcestershire, praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 15th of June 1987, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner - might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as upon the case of the Deputy Governor of Her Majesty's Prison, Long Lartin, lodged in answer to the said appeal? and due consideration had this day of what was offered on either side in this Cause:[32]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 of the 15th day of June 1987 and of Mr. Justice Stuart-Smith of the 18th day of May 1987 complained of in the said Appeal be, and the same are hereby, Reversed, save as to legal aid taxation, and that the Cause be, and the same is hereby, remitted for determination back to the Queen's Bench Division of the High Court of Justice: And it is further Ordered , That the Respondent do pay or cause to be paid to the said Appellant the Costs incurred by him in respect of the said Appeal to this House: And it is also further Ordered, That the Costs incurred by the Appellant in respect of the said Appeal to this House be taxed in accordance with Schedule 2 to the Legal Aid Act 1974.[33]Cler: Parliamentor: Regina v. Deputy Governor of Parkhurst Prison (Respondent), ex parte Leech (A.P.) (Appellant) JUDGMENT Die Jovis 4° Februarii 1988[34]Upon Report from the Appellate Committee to whom was referred the Cause Regina against Deputy Governor of Parkhurst Prison, ex parte Leech (A.P.), That the Committee had heard Counsel on Tuesday the 17th, Wednesday the 18th, Thursday the 19th, Monday the 23rd and Tuesday the 24th days of November last upon the Petition and Appeal of Mark Leech, of 8 Alanscourt, Tower Road, Warmley, Bristol, praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 10th of September 1986, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as upon the case of the Deputy Governor of Her Majesty's Prison, Parkhurst, lodged in answer to the said appeal; and due consideration had this day of what was offered on either side in this Cause:[35]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 of the 10th day of September 1986 and of Mr. Justice Mann of the 22nd day of April 1986 complained of in the said Appeal be, and the same are hereby, Reversed, save as to legal aid taxation, and that the adjudication of the Deputy Prison Governor of Her Majesty's Prison, Parkhurst, made on the 16th of April 1985, be, and the same is hereby Quashed: And it is further Ordered , That the Respondent do pay or cause to be paid to the said Appellant the Costs incurred by him in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House: And it is also further Ordered , That the costs incurred by the Appellant in respect of the said Appeal to this House be taxed in accordance with Schedule 2 to the Legal Aid Act 1974: And it is also further Ordered , That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.[36]Cler: Parliamentor: appellant presented a petition and a supplementary petition to the Secretary of State. The substance of both petitions alleged procedural impropriety in the conduct of the proceedings in that the appellant had not been allowed to call as witnesses either his wife or any of the 18 fellow prisoners present in the visiting room at the time of the alleged offence. On 11 and 13 March 1987 the Secretary of State replied separately to the two petitions through the prison governor. He stated, in the first reply:
"He is satisfied that the adjudication beginning on 31 December 1986 was conducted fairly and that the governor took into account all the relevant evidence in reaching his decision."
[37]He stated in the second reply:
"The record of the hearings shows that you made no request to call your wife as a witness. The Secretary of State can find no grounds for altering his earlier decision not to interfere with the governor's finding at the adjudication."
[38]The appellant sought leave to apply for judicial review of both the governor's and the Secretary of State's decisions. Leave was granted in respect of the Secretary of State's decision, but refused in respect of the governor's decision by Stuart-Smith J. on 18 March 1987. On 15 3une 1987 the Court of Appeal granted leave to apply in respect of the governor's decision, dismissed the substantive application, but granted leave to appeal to your Lordships' House.[39]Before turning to the conflict of judicial opinion which your Lordships must now resolve it is necessary to consider the statutory regime for the conduct and management of prisons and, more specifically, for the punishment of offences by prisoners against discipline. The governing statute is still the Prison Act 1952. As originally enacted this statute vested powers of management of prisons in the Prison Commissioners, subject to the overall control of the Secretary of State. The Prison Commissioners were dissolved in 1963 and, by amendment of the statute, the powers formerly vested in them are now exercisable directly by the Secretary of State. In view of the importance attributed to it in the argument for the respondents I cite in full section 4(2) of the Act of 1952 which provides:
"[Officers of the Secretary of State duly authorised in that behalf] shall visit all prisons and examine the state of the buildings, the conduct of officers, the treatment and conduct of prisoners and all other matters concerning the management of prisons, and shall ensure that the provisions of this Act and of any rules made under this Act are duly complied with."
[40]The words in square brackets were substituted in 1963 for the words "The Prison Commissioners [The Prison Commissioners Dissolution Order 1963 (S.I. 1963 No. 597)]."[41]The Act of 1952 itself makes no direct provision with regard to disciplinary offences in prison. These are left to be dealt with by rules made under section 47 of the Act which provides:
"(1) The Secretary of State may make rules for the regulation and management of prisons, . . . and for the classification, treatment, employment, discipline and control of persons required to be detained therein. (2) Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case."
[42]In relation to disciplinary offences the rules allocate functions both to the board of visitors and to the prison governor. Boards of visitors are appointed under section 6 of the Act and by section 7 every prison is required to have a governor. By section 13(1) every prisoner is deemed to be in the legal custody of the governor of the prison.[43]The all important provisions, for present purposes, are found in rules 47 to 56 of the Rules of 1964. Rule 47 sets out a list of 21 offences against discipline. The general scheme of the code which the rules establish is, as one would expect, that the governor (or any officer of the prison to whom the governor has duly delegated the relevant power and duty under rule 98) may impose limited punishment for relatively minor offences, while the board of visitors may impose more severe punishment for graver offences. But the procedural path prescribed after a prisoner has been charged with an offence follows a largely common course irrespective of the gravity of the charge. Thus in all cases the charge is to be laid as soon as possible (rule 48(1)); the prisoner is ' to be kept apart from other prisoners "pending adjudication" (rule 48(2)); the charge is to be inquired into in the first instance by the governor as soon as possible, normally not later than the following working day (rule 48(3) and (4)). Again in all cases it is required that the prisoner "shall be informed of the charge as soon as possible and, in any case, before the time when it is inquired into by the governor" and that "the prisoner shall be given a full opportunity of hearing what is alleged against him and of presenting his own case": (rule 49). In all cases save those subject to rule 52, to which I will refer later, the governor has power to dismiss the charge. Apart from rule 52 the divergence between what may be called "governor's offences" and "board of visitors' offences" arises only at the stage when the governor has decided not to dismiss the charge. The appropriate procedure is then dictated by the gravity of the offence. If the offence charged is one of the "graver offences" listed in rule 51(1), the governor must inform the Secretary of State and, unless otherwise directed by him, refer the charge to the board of visitors. If the charge is of "any serious or repeated offence" for which the punishments the governor may award seem insufficient, the governor may refer it to the board of visitors under rule 51(2). The punishments which the governor and the board of visitors may award under rules 50 and 51 respectively are identical in kind. They differ only in degree. They range from a mere caution through various deprivations of benefits the prisoner would otherwise enjoy (e.g. stoppage of earnings) and the imposition of special regimes (e.g. cellular confinement) up to what is no doubt the most serious punishment, loss of remission. The difference between the powers of the governor and the board of visitors lies only in the periods for which the several punishments may be awarded. In the case of loss of remission the maximum the governor may award under rule 50 is 28 days, the maximum the board of visitors may award under rule 51 is 180 days.[44]Rule 52 is headed "Especially grave offences" and applies to charges of(a) mutiny or incitement to mutiny and(b) doing gross personal violence to an officer. In any such case the governor has no power to dismiss the charge but must inform the Secretary of State and, unless otherwise directed by him, refer the charge to the board of visitors. The board is required to be specially constituted to include at least two justices of the peace and may award loss of remission for any period.[45]Rule 55 empowers either the governor or the board of visitors to suspend any award of punishment for a period not exceeding six months and if, within the period of suspension, the prisoner commits a further offence, the board of visitors or the governor dealing with that further offence may activate the suspended award. Thus, at least theoretically, the code permits the governor, in certain circumstances, having adjudicated that an offence within his competence under rule 50 has been committed, effectively to impose punishment therefor which may include an award of any severity previously imposed but suspended by the board of visitors. Finally, rule 56 provides:
"(1) The Secretary of State may remit a disciplinary award or mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe. (2) Subject to any directions of the Secretary of State, the governor may remit or mitigate any award made by a governor and the board of visitors may remit or mitigate any disciplinary award. The first attempts to challenge awards made in proceedings for offences against prison discipline by application for orders of certiorari were made following a riot at Hull prison in 1976. A number of prisoners against whom the board of visitors had made awards of loss of remission for substantial periods complained that the proceedings against them were vitiated by breaches of the rules of natural justice. The cases came before the Divisional Court (Lord Widgery C.J., Cumming-Bruce L.J. and Park J.) who held that they had no jurisdiction to entertain the applications: Reg, v. Board of Visitors of Hull Prison, Ex parte St. Germain [1978] Q.B. 678. Lord Widgery C.J., with whom the other members of the court agreed, drew attention to the many features of a disciplinary award which appeared apt to attract the jurisdiction, but discerned, at p. 690: "an exception . . . which prevents certiorari from going even though the circumstances otherwise appear entirely suitable and appropriate for it. That exception is where the order under challenge is an order made in private, disciplinary proceedings where there is some closed body, and a body which enjoys its own form of discipline and its own rules, and where there is a power to impose sanctions within the scope of those rules donated as part of the formation of the body itself."
[46]After referring to a passage from the judgment of Goddard L.J. in Ex parte Fry [1954] 1 W.L.R. 730 Lord Widgery C.J. continued at p. 691:
"The principle there that domestic discipline in the form of a discplinary body is something for the officer charged with the duty of maintaining discipline and not something for the courts is a principle which, in my judgment, we should adhere to and not allow to be wasted away. It is in no way inconsistent with the general approach to certiorari. It sets aside these particular situations of disciplinary bodies and would, and does in my judgment, open the way to refusing certiorari when an order of such a disciplinary body is under review. "
At first I thought this was a principle which would apply only to the governor. I saw the governor equated with the commanding officer of the regiment in Lord Goddard C.J.'s judgment, and it was not until the argument had progressed some way that it seemed to me right that we should include in this principle the board of visitors. The reason why I think it is right to include them is because I think that when they are sitting as a disciplinary body they are part of the disciplinary machinery of the prison. I reject entirely any suggestion that the governor's decision should be the subject of certiorari, and I cannot see myself how, if the governor is left out, the board of visitors can be put in."[47]This judgment was reversed by the Court of Appeal (Megaw, Shaw and Waller L.JJ) [1979] Q.B. 425. Megaw L.J. felt able to draw a distinction between disciplinary adjudications and awards by a board of visitors on the one hand and by a prison governor on the other. Certiorari would lie to the former, not to the latter. The critical passage from his judgment at pp. 447-448 reads:
"To my mind, contrary to the submission put forward by the board of visitors in their respondents' notice, while the board of visitors have numerous other functions connected with the administration of the prison, their function in acting as a judicial tribunal in adjudicating on charges of offences against discipline, and in making awards consequent on findings of guilt, is properly regarded as a separate and independent function, different in character from their other functions. It is materially different, in my judgment, from the function of the governor in dealing with alleged offences against discipline. While the governor hears charges and makes awards, his position in so doing corresponds to that of the commanding officer in military discipline or the schoolmaster in school discipline. His powers of summary discipline are not only of a limited and summary nature but they are also intimately connected with his functions of day-to-day administration. To my mind, both good sense and the practical requirements of public policy make it undesirable that his exercise of that part of his administrative duties should be made subject to certiorari. But the same does not apply to the adjudications and awards of boards of visitors who, to quote from Mr. Beloff's alternative submission on this part of the case, 'are enjoined to mete out punishment only after a formalised inquiry and/or hearing. 1 It may be difficult to define the distinction as a strict matter of logic. But I think that, as a matter of proper practical application of the law in the general interest, not forgetting the legitimate interest of prisoners, that is where the line should be drawn, in respect of this 'private law' disciplinary machinery. I think that, after giving full weight to all that has been said and done over recent years affecting the extension of the scope of the remedy of certiorari, there is nothing in existing law which requires us to decline to draw that line of distinction."
[48]Shaw L.J. expressed a different view in a passage of such cogent reasoning that it must be cited in full. He said at, pp. 455-456:
"Now the rights of a citizen, however circumscribed by penal sentence or otherwise, must always be the concern of the courts unless their jurisdiction is clearly excluded by some statutory provision. The courts are in general the ultimate custodians of the rights and liberties of the subject whatever his status and however attenuated those rights and liberties may be as the result of some punitive or other process. Although rule 7(1) impliedly enables a prisoner to petition the Secretary of State in respect of some grievance or deprivation, there is nowhere in the Act of 1952 or the Rules made under it any indication that such rights, however attenuated, as he may still possess are not cognisable in a court of law. Once it is acknowledged that such rights exist the courts have function and jurisdiction. It is irrelevant that the Secretary of State may afford redress where the Rules have been infringed or their application has been irregular or unduly harsh. Ah essential characteristic of the right of a subject is that it carries with it a right of recourse to the courts unless some statute decrees otherwise. What should be the nature and measure of the relief accorded must be a matter for the courts. Public policy or expediency as well as merits may be factors to consider and they may influence the answer to any application for relief; but to deny jurisdiction on the ground of expediency seems to me, with all respect to the views expressed in the judgment of Lord Widgery C.J., in the Divisional Court [1978] Q.B. 678, to be tantamount to abdicating a primary function of the judiciary. It is true that some authority for this attitude is to be found in the judgment of Lord Goddard C.J. in Ex parte Fry [1954] 1 W.L.R. 730: but when that judgment was considered by the Court of Appeal it was upheld on the exercise of discretion and not on the issue of jurisdiction. In my view the Divisional Court erred in that case in so far as it held that it was without jurisdiction. Neither principle nor policy would serve to deprive the courts of jurisdiction to supervise the conduct of a proceeding of a judicial or quasi-judicial character the outcome of which might affect the rights or liberties or status of a subject. It is unnecessary to look further than the speech of Lord Reid in Ridge v. Baldwin [1964] AC 40 , 74, for an exposition of contemporary legal principle in regard to the forms of relief based on the old prerogative writs. Apart from statute or specific contract there can be no external fetters on the exercise by the court of its jurisdiction to control the proceedings of bodies or individuals who have the power to deal with the rights or liberties or status of a subject. In my view the only necessary restraint on the exercise of this supervisory and salutary jurisdiction is an internal one, namely, the discretion of the court from whom relief is sought. This appears to be the philosophical approach which emerges from the opinions expressed by their Lordships in Ridge's case and which had been earlier stated in the judgment of Atkin L.J. in Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B. 171, 204. "
If, therefore, it is recognised, as it was by Lord Widgery C.J. in his judgment, that a board of visitors are required to act judicially in the discharge of their disciplinary function, it must follow that the supervisory jurisdiction of the High Court is at once alerted. The proceedings of a board in this context, involving as they do, a charge, a hearing and an adjudication, and affecting as they may the rights or liberties or status of a prisoner, are the very subject matter of the controlling or corrective jurisdiction of the High Court. It may be inexpedient or perhaps stultifying in relation to prison discipline that recourse to the courts should be available to a prisoner who advances some capricious complaint as to the manner in which he has been disciplined. There are no finite limits to the extent of the jurisdiction of the High Court in this regard. The practical limits are to be sought in the exercise of the power to grant relief which is always a matter of discretion. "Indeed all the arguments advanced in opposing these appeals appeared to me to go to discretion and not to jurisdiction. The opportunity for a prisoner to seek from the Secretary of State redress for a grievance (rule 7 and rule 56) does not amount to a right of appeal for review of an unwarranted decision by a board of visitors or a prison governor. The fact that such means of possible redress has not been pursued before application is made to the court may in some cases be regarded as a discretionary obstacle to the grant of relief by the courts; but it cannot be an absolute bar. "If the adjudication of a board has been irregularly or unfairly arrived at, no ultimate prejudice may result, and this may be apparent at the first glimpse which the High Court is afforded of the matter of complaint. It is readily understandable that discipline in a prison may be weakened if its exercise can be challenged in the courts; but until Parliament chooses to enact that the proceedings of a board of visitors in their disciplinary function, however conducted, shall be free from supervision or control by the High Court, the scope of their inherent jurisdiction must, in my view, include such proceedings. I do not for my part find it easy, if at all possible, to distinguish between disciplinary proceedings conducted by a board of visitors and those carried out by a prison governor. In each case the subject matter may be the same; the relevant fundamental regulations are common to both forms of proceeding. The powers of a governor as to the award he can make (which really means the punishment he can impose) are more restricted than those of a board of visitors in a corresponding situation; but the essential nature of the proceedings as defined by the Prison Rules is the same. So, in nature if not in degree, are the consequences to a prisoner."[50]Waller L.J. agreeing with Megaw L.J. on the main issue, reserved a final decision as to whether or not certiorari would lie against a governor. But he expressed provisional views on this issue in two passages in his judgment. He said, at pp. 462-463:
"Nevertheless I find it difficult to visualise any circumstances in which certiorari would lie against the governor. His decisions are an intimate part of the disciplinary system of the prison. At the lowest level discipline is maintained in accordance with rule 2. It is the face-to-face discipline which is maintained by the prison officer on the landing, in the prison yard or in the prison workshops. Example and leadership are required, and such firmness as may be necessary. It is only when this level of control fails in some way that the governor is brought into the picture. Rule 47 sets out 21 specific offences against discipline of varying degrees of seriousness. Every charge has first to be inquired into not later than the next day after it is laid (other than a Sunday or public holiday) (see rule 48(4)) and no doubt in the majority of the less serious offences is disposed of. I agree with the passage from the judgment of Lord Widgery C.J. which I have already quoted in which he emphasises the importance of the officer charged with maintaining discipline not being interfered with by the courts."
He said again, at p. 466:
"I have left until last the suggestion that it is difficult to distinguish between the governor and the board of visitors because it is a matter which I have already briefly considered. I do not find the distinction difficult to make. The governor is an essential part of the organisation of discipline in the prison Discipline is his responsibility at all times. He is at the head of the disciplinary pyramid, and being at the head there is a greater degree of formality. His position is strictly comparable with the commanding officer of a service unit. Boards of visitors hold the balance between the governor and the internal discipline of the prison and the prisoner himself and, when sitting, can be regarded as 'an impartial and independent authority. 1 "
[51]In O'Reilly v. Mackman [1983] 2 AC 237 Lord Diplock, in a speech with which all the other members of the Appellate Committee agreed, expressed the view that the decision in St. Germain's case [1979] Q.B. 425 was clearly right. That was, however, obiter and it was open to the Home Office, who effectively instruct counsel on behalf of the respondents to the present appeals, to invite your Lordships to reverse the decision.[53]That course was not taken. Mr. Laws frankly told us that the Home Office now accepted the courts' direct supervision of awards by boards of visitors as right and desirable and would not wish to succeed in resisting the present appeals at the price of seeing the decision in St. Germain's case overruled. I think, if I may say so, that that it is an eminently sensible and commendable attitude. Your Lordships have heard no suggestion Of any adverse effects flowing from the exercise of the exercise of the courts' supervisory jurisdiction over proceedings before boards of visitors and there seems no reason to doubt that, so far from fulfilling the fear expressed in argument for the respondents in St. Germain's case [1979] Q.B. 425, 437 that "the subjecting of disciplinary proceedings to scrutiny by the courts would have inevitably adverse affects on the discipline and morale of prisoners and staff alike," the courts' infrequent interventions have improved the quality of justice administered by boards of visitors. This is well illustrated by Reg. v. Secretary of State for the Home Department, Ex parte Tarrant [1985] Q.B. 251. Some of the six cases before the court on that occasion show that there was certainly room for such improvement. Reg. v. Deputy Governor of Camphill Prison, Ex parte King came first before the Divisional Court (Kerr L.J. and Glidewell J.) on 22 March 1984. Their decision is unreported. The appellant prisoner complained that his conviction of a disciplinary offence by the deputy governor was based on a misconstruction of the rule under which he was charged. The judgments in the Divisional Court concurred in dismissing the application on the ground that there had been no misconstruction of the rule, but differed on the issue of jurisdiction. Kerr L.J., in a carefully reasoned judgment, from which I forebear to quote only for the sake of brevity, could see no difference in principle between adjudications and awards by boards of visitors and governors to justify a distinction between the right to judicial review of awards by boards of visitors on the one hand and a total denial of the right in relation to awards by governors on the other. Glidewell 3. took the opposite view, agreeing with Megaw and Waller L.JJ in St. Germain's case [1979] Q.B. 425. He said:
"As to the nature of the governor's decision and the process by which he makes it, it is self-evident that in a prison the maintenance of good order and discipline is of fundamental importance. It follows in my view that when the governor is holding an inquiry into and adjudicating upon a disciplinary offence, he is exercising a part of his overall function of governing the prison, not a separate and distinct function. In this way, his exercise of the powers of summary discipline can be distinguished from the exercise by the board of visitors of their judicial function."
The decision of the Court of Appeal (Lawton, Griffiths and Browne-Wilkinson L.JJ) is reported at [1985] Q.B. 735. They differed from the Divisional Court in holding that the deputy governor had misconstrued the relevant rule under which the prisoner was charged but nevertheless held that the court had no jurisdiction to correct the error. The prisoner's only remedy was by petition to the Secretary of State whose decision would alone be subject to judicial review. It is necessary and right in this case to set out in extenso the passages which express the essential reasoning of the decision which your Lordships are now invited to overrule.[54]Lawton L.J. said, at p. 749:
"In my judgment, a prison governor is nothing more than a manager appointed by and answerable to the Secretary of State. Those whom he is managing have to behave properly towards those with whom they come into contact, to do as they are told and when they are told and to conform to the standing orders in the prison. This is an essential aspect of all managements, whether it be management of a factory, an office or a school. Management without discipline is a recipe for chaos. For a prison governor, however, the ultimate sanction used in industry, commerce and schools, namely, dismissal, is not available. There is need for other sanctions. Rule 50 of the Rules of 1964 says what they are. In my judgment, the powers given to the governors of imposing disciplinary awards for offences against discipline are necessary for the proper and efficient discharge of their duties as managers. All prisons are likely to have within them a few prisoners intent on disrupting the administration. They are likely to have even more who delude themselves that they are the victims of injustice. To allow such men to have access to the High Court whenever they thought that the governor abused his powers, failed to give them a fair hearing or misconstrued the prison rules would undermine and weaken his authority and make management very difficult indeed. In prisons, as in the armed services, those who have grievances can, and should, follow the way laid down for getting them dealt with. Prisoners can make complaints to the visiting committee or board of visitors (see rule 95) and petition the Secretary of State. If a prisoner has a well-founded complaint that a governor has misconstrued a prison rule and the Secretary of State has rejected his petition inviting attention to the misconstruction, he may be entitled to apply for judicial review of the Secretary of State's decision, the relief being in the form of a declaration as to what is the correct construction. "
The governor's position is very different from that of the board of visitors. They have no managerial functions. They do not have to maintain discipline from day to day. They are an independent and impartial body whose function in relation to disciplinary offences is essentially judicial. Such judicial functions as a governor has are but one aspect, and a minor one, of his managerial functions. It would be difficult to separate his judicial functions from his management ones without impairing his ability to discharge the latter. In my judgment, as a matter of common sense and public policy the court should not try to do so."[55]Griffiths L.J. said, at pp. 750-752:
"The Court of Appeal, now with the approval of the House of Lords, has already extended judicial review to the disciplinary proceedings of the board of visitors. I see the force of the argument that it is a necessary logical extension of the jurisdiction that it should also embrace disciplinary proceedings before the governor, who is adjudicating upon the same code of discipline albeit with lesser powers of punishment, and who also derives his authority to do so from the same statutory instrument, namely, the Prison Rules 1964. "
But the common law of England has not always developed upon strictly logical lines, and where logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society. "I can think of no more difficult task in contemporary society than that of managing and maintaining discipline in our seriously overcrowded prisons, nor a task more dependent upon the personal authority of the incumbent. I am convinced that we should make it very much more difficult to carry out that task if the authority of the governor is undermined by the prospect of every disciplinary award being the subject of potential challenge in the courts. I say 'every disciplinary award' because if judicial review is to be available I cannot see how it could be restricted to cases of loss of remission as was suggested at one point in the argument. I appreciate that if the jurisdiction was extended to include governors' awards the court, in its discretion, would refuse to entertain frivolous and unmeritorious applications, but that would not stop the applications being made, and until the court had given its ruling a question mark would hang over the governor's award and to that extent, and I think a serious extent, his authority would be undermined. Nor would it be an easy matter to winnow out all the unmeritorious applications, and I have little doubt that many would squeeze through the net only to be exposed as a result of a full hearing. "I wish I could find a logical way in which to distinguish between governors and boards of visitors, but I have not been able to do so and I think at the end of the day I must content myself by pointing to some of the differences that justify a different approach. "Although both the board of visitors and the governors are administering the same disciplinary code the adjudication process is necessarily very different. The board of visitors are entirely independent. In ail probability they do not know the prisoner, or if they do, not nearly as well as the governor. They are dealing with more serious offences than the governor and their powers of punishment are very much greater. More formality will attend their proceedings and they have a discretion to allow legal representation; whereas the speed with which a governor is required to deal with matters under the disciplinary code-see rule 48(4)-shows that legal representation before a governor cannot have been contemplated. The proceedings before a board of visitors is closely analogous to a hearing before a court, whereas the hearing before a governor is more analogous to coming before a commanding officer or headmaster. Judicial review goes to review the decision of an inferior court but not to review that of the commanding officer or headmaster. "If a governor was a law unto himself it would be a powerful reason for having judicial review available to curb any excess or abuse of his powers. But the governor is not a law unto himself, he is appointed by and responsible to the Secretary of State for the Home Department ."[56]The learned

Lord Justice then set out the provisions of section 4(2) of the Act of 1952 and continued:

"In these circumstances the court should, in the first instance, be prepared to assume that the Secretary of State will discharge the duty placed upon him by Parliament to ensure that the prison governor is doing his job properly. If it is shown that the Minister is not discharging this duty and allowing a prison governor to disregard the prison rules then judicial review will go to correct that situation by requiring the Minister to perform his statutory duty. I regard this as the route by which the court in the present case could legitimately have been called upon to construe rule 47(7). If the prisoner had petitioned the Secretary of State and made clear that his complaint was that he had lost remission because the governor. had wrongly construed the rule it would have been the duty of the Secretary of State to consider the construction of the rule. If the Secretary of State had then misconstrued the rule and thus rejected the petition it would then have been open to the prisoner to seek judicial review of the Secretary of State's decision on the ground that he had rejected his petition because he had misdirected himself in law. "
Thus it seems to me there is a route open to a prisoner to seek redress from the court if he suffers injustice as a result of the misconstruction of the prison rules without having to resort to extending judicial review to the decisions of prison governors. I am therefore satisfied that no substantial injustice will be suffered by prisoners in refusing to extend judicial review to governors' decisions which is a factor that naturally weighs very heavily with me in deciding that judicial review should not be so extended."[57]Browne-Wilkinson L.J. said, at p. 753:
"I, too, can see no logical distinction between the disciplinary functions of prison governors and the disciplinary functions of boards of visitors which the House of Lords has held are subject to judicial review. On the other hand, the practical repercussions of holding that the disciplinary decisions of prison governors are subject to review by the courts are frightening. It would be to shut one's eyes to reality to ignore the fact that, if prisoners are able to challenge in the courts the disciplinary decisions of the governor, they are likely to try to do so in many, often unmeritorious, cases and the maintenance of order and discipline in prisons is likely to be seriously undermined. "
I have found the resolution of this conflict in a point first raised by Griffiths L.J. during the hearing of the appeal and which was not argued in the Divisional Court. By section 4(2) of the Prison Act 1952 Parliament imposed on the prison commissioners the duty to ensure that the provisions of the Act and any rules made under it are complied with. On the dissolution of the prison commissioners on 1 April 1963 this duty became vested in the Secretary of State for the Home Department. Parliament has therefore by express enactment imposed on someone other than the courts a specific obligation to ensure compliance with the statutory provisions. In my judgment, where Parliament has so provided it would not normally be appropriate for the court to take jurisdiction to ensure compliance with such statutory provisions, at least in cases where the person entrusted with the duty has adequate powers to ensure that the statutory provisions are in fact complied with." In the Northern Ireland case of Reg. v. Governor of the Maze Prison, Ex parte McKiernan , an application by a prisoner for judicial review of a prison governor's award, the question of jurisdiction was decided as a preliminary point. Gibson L.J., at first instance, followed King's case [1985] Q.B. 735 and held that there was no jurisdiction. This decision was reversed by the Court of Appeal (Lord Lowry C.J. and O'Donnell L.J.) on 15 June 1985. The judgments are unreported and are of some length. As I agree both with the conclusion and with the substance of the reasoning in these judgments, but intend to express my own reasons for reaching the same conclusion in my own words, I shall not still further lengthen this review of conflicting authorities by citing or attempting to summarise the judgments of the Court of Appeal in Northern Ireland.[58]The central plank in Mr. Laws' argument for the respondents rests, not surprisingly, on section 4(2) of the Act of 1952 which figured so largely in the judgments of Griffiths and Browne-Wilkinson L.JJ in King's case. The central proposition on which the validity of the argument ultimately depends is that the court has jurisdiction to entertain an application for judicial review only where that jurisdiction is shown to be necessary in order to secure compliance with the law by the public authority whose action is sought to be challenged. Here, it is said, since Parliament has expressly imposed on the Secretary of State the duty to ensure compliance with the Act of 1952 and rules made thereunder, there is no need for the court to intervene at any point short of a failure by the Secretary of State duly to perform that duty and it is that failure alone which is susceptible to judicial review. It seems to me, with respect, that the proposition is fundamentally fallacious. The principle is now as well established as any principle can be in the developing field of public law that where any person or body exercises a power conferred by statute which affects the rights or legitimate expectations of citizens and is of a kind which the law requires to be exercised in accordance with the rules of natural justice, the court has jurisdiction to review the exercise of that power. The governor of a prison holds an office created by the Act of 1952 and exercises certain powers under rules 47 to 55 of the Rules of 1964 which are conferred upon him and him alone. The exercise of those powers may well affect the rights and certainly affects the legitimate expectations of prisoners. Although remission of sentence is not a right but, in theory, a reward for "industry and good conduct" under rule 5 of the Rules of 1964, long standing practice gives prisoners a legitimate expectation that they will be granted maximum remission unless ordered to lose remission under the disciplinary code. The governor's duty to act in accordance with the rules of natural justice is clearly spelt out in the rules and has never been in question. Thus a governor adjudicating on a charge of an offence against prison discipline bears on his face ail the classic hallmarks of an authority subject to judicial review. To invoke the Secretary of State's general statutory duty to ensure compliance with prison legislation to oust the jurisdiction of the court on the ground that the Secretary of State's duty obviates the need for any such jurisdiction in relation to the governor's awards is to stand the doctrine by which the limits of jurisdiction in this field are determined on its head. When the court comes to the question of how to exercise discretion, it may well be proper to ask whether, in the particular case, the court's intervention is needed. But neither principle nor authority lend any support to the view that the court must identify some element of necessity as the basis of its jurisdiction. Just as the allegation of a wrong of a kind recognised as remediable by private law is sufficient to found the court's ordinary jurisdiction, so the allegation of a wrong of a kind recognised as remediable by public law is sufficient to found jurisdiction in judicial review. In either case jurisdiction is only ousted by clear express statutory provision. The existence of an alternative remedy has never been sufficient to oust jurisdiction in judicial review and, in the last analysis, the reliance on section 4(2) of the Act of 1952, however ingeniously the argument is presented, amounts to no more than saying that the Secretary of State's statutory duty to ensure compliance with the law by the governor affords an alternative remedy for any public law wrong which a prisoner charged with an offence against discipline may suffer at the governor's hands.[59]These considerations are in themselves sufficient, in my opinion, to invalidate the argument based on section 4(2), but, in view of the significance attributed to this provision in King's case [1985] Q.B 735, I should advert to other difficulties which the argument must confront. Browne-Wilkinson L.J. himself referred to the difficulty that much of his reasoning based on the subsection was equally applicable to the decisions by the board of visitors. He sought to surmount the difficulty in the following passage, at p. 754:
"However, in my judgment, there is a substantial difference between decisions of governors on the one hand and boards of visitors on the other. Although, as Kerr L.J. has demonstrated, there is no material difference between their functions in relation to disciplinary offences, their relationship to the Secretary of State is quite different. Governors, as servants or agents, are bound to comply with the directions of the Secretary of State, who therefore has power to ensure compliance by them with the statutory provisions. Boards of visitors, on the other hand, are not the servants or agents of the Secretary of State but are independent. So far as I can see, although the Secretary of State has power to remit a disciplinary award made by the board of visitors he has no other power to ensure that they act in accordance with the statutory provisions. Therefore, Parliament not having provided adequate powers to enable the Secretary of State to ensure compliance by the board of visitors with their statutory obligations, the court must intervene if the observance of those statutory obligations is to be enforced."
[60]With every respect, I think the reasoning in this passage is erroneous. A prison governor may in general terms be aptly described as the servant of the Secretary of State, but he is not acting as such when adjudicating upon a charge of a disciplinary offence. He is then exercising the independent power conferred on him by the rules. The Secretary of State has no authority to direct the governor, any more than the board of visitors, as to how to adjudicate on a particular charge or what punishment should be awarded. If a Home Office official sought to stand behind the governor at a disciplinary hearing and tell him what to do, the governor would properly send him packing. That this is so is emphasised by rule 51(5) of the Rules of 1964 which provides:
"The Secretary of State may require any charge to which this rule applies to be referred to him, instead of to the board of visitors, and in that case an officer of the Secretary of State (not being an officer of a prison) shall inquire into the charge and, if he finds the offence proved, make one or more of the awards listed in paragraph (4) of this rule."
[61]Thus, quoad the exercise of their disciplinary functions, the relationship to the Secretary of State of the governor and the board of visitors is identical. Short of giving a direction under rule 51(5) to transfer disciplinary jurisdiction over a particular case to his own officer, the Secretary of State has no power to interfere with either the governor or the board of visitors before they make their award. After an award has been made the Secretary of State has exactly the same power in either case to remit or mitigate the award under rule 56(1).[62]A related and perhaps even more formidable difficultly arises from the distinction between ensuring compliance with rules on the one hand and remedying a breach of the rules after it has occurred on the other. In this connection it is to be observed that the Prison Commissioners, by whom the duty imposed by section 4(2) of the Act of 1952 to ensure compliance with the provisions of the Act and the rules fell to be performed until their dissolution in 1963, did not at any time have assigned to them by the rules then applicable any function in the disciplinary process. But that apart, for the reasons indicated in the foregoing paragraph the Secretary of State has no power by direct intervention in the conduct of disciplinary proceedings to ensure compliance with the rules in the sense of preventing errors by the governor or the board of visitors such as will vitiate their awards. After an award has been made, if it is vitiated by error, the extent of the Secretary of State's power is to remit the award under rule 56(1), which does not, as the Secretary of State himself pointed out in the case of Leech, extend to quashing or otherwise expunging the finding of guilt on which the award was based. Mr. Laws argued that power to quash must be implied from the duty to ensure compliance with the rules under section 4(2). But to my mind this argument is not only incorrect, but also exposes another fallacy which underlies the respondent's reliance on section 4(2) as a jurisdictional tabula in naufragio. For the plain fact is that quashing a finding of guilty would do no more than remitting an award to ensure compliance with the Act and rules made thereunder. All it would do would be to provide a more effective remedy for a past failure to comply with the rules by annulling its consequences.[63]I confess that I am relieved to find that section 4(2) of the Act of 1952 turns out not to be decisive of these appeals. As Lord Lowry C.3. pointed out in McKiernan's case (unreported), the subsection has no counterpart in the Prison Act (Northern Ireland) 1953. It would have seemed to me, to say the least, highly unsatisfactory to be driven by this single provision of the English Act to the conclusion that the law in England and Wales was different from that in Northern Ireland in such an important respect when the legislative instruments by which the two prison systems are governed are in general terms so closely parallel. But with section 4(2) out of the way, I can turn to matters common to both systems.[64]Apart from section 4(2) and arguments from expediency, it will have been noted in the judgments to which I have referred that the main theme relied on to justify exclusion of the court's jurisdiction to review a governor's disciplinary awards is the supposed indivisibility of the governor's functions in adjudicating upon charges of offences against discipline and in the day-to-day management of the prison, coupled with analogies sought to be drawn between the position of a prison governor on the one hand and of a commanding officer or schoolmaster on the other. For my part I derive no assistance at all from the suggested analogies. The position of a commanding officer or a schoolmaster differs in many obvious respects from that of a prison governor. It would be quite profitless to examine hypothetical situations in which the court's jurisdiction in judicial review might be invoked against a commanding officer or a schoolmaster for any light they are capable of throwing on the question presently arising for decision. Those cases can be left to be considered if and when they arise. We are here concerned with a specific question arising in a specific statutory context. It is precisely that context itself which makes it impossible, to my mind, to brush aside the governor's independent and plainly judicial role as an adjudicator by saying, as Lawton L.J. does in King's case [1985] Q.B. 735, 749, that "a prison governor is nothing more than a manager appointed by and answerable to the Secretary of State." The day-to-day management of a prison is one thing, the adjudication of charges against prisoners of specific offences and the award of punishments for those offences is another. Of course the two functions are related, but in so far as it is relevant to do so, I see no greater difficulty in drawing a distinction between them than in the parallel case of boards of visitors whose disciplinary functions are distinct from other functions they perform under the Act of 1952 and the Rules of 1964.[65]Having accepted the decision in St. Germain's case [1979] Q.B. 425, Mr. Laws' task in seeking to justify a line of distinction between the reviewability of boards of visitors' decisions and the non-reviewability of governors' decisions is made doubly difficult by the arguments which were advanced but rejected in St. Germain's case. Every submission recorded in the report of counsel's arguments [1979] Q.B. 425, 434-437 which sought to sustain Lord Widgery's view that the functions of boards of visitors and governors in adjudicating upon disciplinary offences were indistinguishable and to show that the last defensible bastion to prevent a disastrous intrusion by the courts into the management of prisons could only be held by refusing jurisdiction to review boards of visitors' decisions has, in the argument of the present appeals, been not so much abandoned as transposed and adapted to sustain the alternative position that the system of internal prison discipline, having survived and even benefited from judicial review of decisions by boards of visitors, would nevertheless be totally undermined if the court once crossed the threshold of the governor's province beyond which it could not stop short of accepting responsibility for every facet of prison management.[66]Mr. Laws has emphasised the difference in function between the governor and the board of visitors in relation to the general conduct of a prison and more particularly in their relationship with the prisoners. Without referring in detail to the relevant provisions of the Act of 1952 and the Rules of 1964, the position and role of the board of visitors may be summarised as follows. They are persons quite independent of the prison service and are appointed to hold office for a fixed term by the Secretary of State. They have free access to every part of the prison and to every prisoner. They normally meet at the prison monthly. As a board they oversee the state of the prison premises, the prison administration and the treatment of prisoners and report to the Secretary of State as they think expedient. In emergency they have power to suspend a prison officer. Individually members pay regular visits to the prison between meetings of the board and hear any complaint or request made by a prisoner. Thus, as Mr. Laws fairly says, members of the board are in a position set apart from the governor and his staff. They have no direct responsibility for management, but act in an independent supervisory capacity as intermediaries between the prison staff and the Secretary of State. In relation to prisoners their role is primarily pastoral. All these are valid points of distinction between the board of visitors and the governor generally. What I cannot follow is how they help to distinguish the characteristics of their respective functions under the disciplinary code on which liability to judicial review depends. I can well see that, in the eyes of a prisoner the board of visitors when adjudicating may appear to enjoy a degree of independence which he would not attribute to the governor. But this can hardly support the distinction in jurisdiction contended for.[67]When one turns to compare the functions of the governor and the board of visitors under rules 49 to 55, the only distinctions that can be made are first that adjudications by the governor are likely to be speedier and less formal, secondly that they deal with offences of less gravity and thirdly that the governor's powers of punishment are more restricted. The third distinction loses much of its significance in the light of the governor's power under rule 55 to activate an award by the board of visitors previously suspended. But even apart from this, these three distinctions provide no foundation on which it is possible to build a logical defence of the denial of jurisdiction to review governors' awards consistently with acceptance of jurisdiction to review" awards by the board of visitors. This view is, I think, explicitly or implicitly accepted by all the judges who have expressed themselves in favour of holding the line where the English Court of Appeal has now drawn it. The position can be justified, if at all, only on the ground of the dire consequences apprehended to follow if the jurisdiction for which the appellants contend is accepted.[68]Mr. Laws held out the prospect, as one which should make our judicial blood run cold, that opening the door to judicial review of governors' awards would make it impossible to resist an invasion by what he called "the tentacles of the law" of many other departments of prison administration. My Lords, I decline to express an opinion on any of the illustrations advanced in support of this part of the argument. In a matter of jurisdiction it cannot be right to draw lines on a purely defensive basis and determine that the court has no jurisdiction over one matter which it ought properly to entertain for fear that acceptance of jurisdiction may set a precedent which will make it difficult to decline jurisdiction over other matters which it ought not to entertain. Historically the development of the law in accordance with coherent and consistent principles has all too often been impeded, in diverse areas of the law besides that of judicial review, by the court's fear that unless an arbitrary boundary is drawn it will be inundated by a flood of unmeritorious claims. If there are other circumstances beyond those arising from a governor's disciplinary award where the jurisdiction of the court may be invoked to remedy some injustice alleged to have been suffered by a prisoner consequent upon an abuse of power by those who administer the prison system, I am content to leave those claims for decision as they arise with every confidence in the court's ability to protect itself from abuse by declining jurisdiction where no proper basis to establish jurisdiction is shown or by the exercise of discretion to refuse a discretionary remedy for claims within jurisdiction but without substance.[69]What must on the other hand be of great concern to your Lordships is the fear so strongly voiced by three judges of the eminence and experience of Lawton, Griffiths and Browne-Wilkinson L.JJ that for the court to assume direct supervision in judicial review proceedings of governors' disciplinary awards would by itself undermine the governor's authority and seriously aggravate the already difficult task of maintaining order and discipline in prisons. I recognise that there are some situations where, as Griffiths L.J. points out, the law's experience justifies it in preferring a pragmatic to a strictly logical solution of a particular problem. Whether that approach is permissible here depends, I think, on two balancing considerations. First, quite apart from any reliance on section 4(2) of the Act of 1952, has the prisoner, who complains of a legally invalid adjudication and award against him by the governor, an adequate remedy available by way of petition to the Secretary of State, followed by judicial review as may be necessary of the Secretary of State's decision on his petition? Secondly, to the extent that the remedy falls short of adequacy, can the court's fear of the effect of granting a direct judicial remedy afford a legitimate "public policy" reason to deny jurisdiction?[70]One manifest inadequacy of the remedy by petition is the absence of any power in the Secretary of State to quash the adjudication. This may seem of minor significance. If the award has been remitted, it may perhaps be of little consequence that the adjudication of guilt has not been set aside. But when the prisoner's record shows merely that the punishment awarded for an offence has been remitted by the Secretary of State, those who have to take account of the record, as for example when the prisoner's eligibility for parole is under consideration, will not know, in a case such as that of Leech, that the proceedings leading to the award were wholly invalid and it is at least possible that the record may operate to his prejudice. This is a lacuna in the rules which can readily be cured by amendment and it is very desirable that it should be. If the Secretary of State had power to quash the adjudication as well as power to remit the award, it would be difficult to suppose that the court, as a matter of discretion, would be likely to grant judicial review to a prisoner who had not petitioned the Secretary of State, save in a case of urgency where the prisoner's release was imminent but would be delayed by loss of remission ordered by the disputed award.[71]In a case such as King , where the ground of challenge to the governor's award was an alleged misconstruction of the prison rule under which the prisoner was charged, it is apparent that, subject to any question of urgency, the court can just as well adjudicate on the point at issue by judicial review of the Secretary of State's decision on the petition as by judicial review of the award itself. But such a case is likely to be exceptional. Most challenges are likely to relate to the conduct of the proceedings by the governor, as in the instant case of Prevot. In such a case I do not see how a petition to the Secretary of State can possibly provide an adequate remedy. Save perhaps in a case that is taken up by a member of Parliament, the matter will come before a civil servant in the Home Office who will consider on the one hand the prisoner's petition, on the other hand the relevant records and reports supplied by the governor. If those disclose an issue of fact, I hope it is not unduly cynical to suppose that in the majority of cases the civil servant is likely simply to accept the governor's account. But even if he wishes to resolve any issue of fact in a judicial way, he probably lacks the experience and certainly lacks the procedural machinery, including the power to require evidence on oath, enabling him to do so. If the court's jurisdiction is limited to considering an application for judicial review of the Secretary of State's decision on a prisoner's petition, the court will have to accept the Secretary of State's findings as a barrier to prevent the use of its own procedure and powers to ascertain the facts on which the validity of the governor's adjudication essentially depends. This cannot be an adequate substitute for judicial review of the award itself.[72]Can it then be right for the court to refuse jurisdiction to afford what seems prima facie to be both the appropriate and the necessary remedy on the ground of "public policy?" My Lords, with every respect to the views expressed in King's case as to the consequences which the acceptance of jurisdiction will bring in its train, I have to point out that they are based on subjective judicial impression. In the nature of the case they can have no foundation in previous experience. No one can predict the consequences with any certainty. It may be a virtual certainty that a number of trouble makers will take every opportunity to exploit and abuse the jurisdiction. But that is only one side of the coin. On the other side it can hardly be doubted that governors and deputy governors dealing with offences against discipline may occasionally fall short of the standards of fairness which are called for in the performance of any judicial function. Nothing, I believe, is so likely to generate unrest among ordinary prisoners as a sense that they have been treated unfairly and have no effective means of redress. If a prisoner has a genuine grievance arising from disciplinary proceedings unfairly conducted, his right to petition a faceless authority in Whitehall for a remedy will not be of much comfort to him. Thus, I believe, it is at least possible that any damage to prison discipline that may result from frivolous and vexatious applications for judicial review may be substantially offset by the advantages which access to the court will provide for the proper ventilation of genuine grievances and perhaps also that the availability of the court's supervisory role may have the effect on the conduct of judicial proceedings by governors which it appears to have had in the case of boards of visitors of enhancing the standards of fairness observed. I acknowledge that the views which I express are no less speculative than those expressed in King's case. Time alone will show which is right. But I am firmly of the opinion that, if the social consequences of the availability of judicial review to supervise governors' disciplinary awards are so detrimental to the proper functioning of the prison system as King's case predicts, it lies in the province of the legislature not of the judiciary to exclude the court's jurisdiction.[73]My Lords,[73]I have felt constrained by the divergence of previous judicial opinions to express the reasons for my own conclusion that the court has jurisdiction to entertain an application for judicial review of a governor's disciplinary award at what I fear has been inordinate length. Had I felt able to express myself more shortly, I could not have done better than to adopt in its entirety the passage I have cited from the judgment of Shaw L.J. in St. Germain's case [1979] Q.B. 425, 455-456. The reasoning in that passage derives added force from the subsequent decision of your Lordship's House in Raymond v. Honey [1983] 1 AC 1 affirming the principle that a convicted prisoner "retains all civil rights which are not taken away expressly or by necessary implication" (per Lord Wilberforce at p. 10) and in particular his right of unimpeded access to the courts. I cannot help reflecting, in conclusion, that it would be a very remarkable state of affairs if he were denied access to the courts to challenge the proceedings of an inferior judicial authority empowered, in effect, to deprive him of liberty by extending the term of his imprisonment.[75]For these reasons and for those given in the speech of my noble and learned friend Lord Oliver of Aylmerton, with which I fully agree, I would allow the appeals. In the case of Leech there seems to be no reason why your Lordships should not proceed to quash the adjudication against him on 16 April 1985 in respect of which the award has already been remitted. In the case of Prevot your Lordships have not entered upon consideration of the merits and the application should now be remitted for determination to the Queen's Bench Division. LORD FRASER OF TULLYBELTON My Lords,[76]I have had the privilege of reading in draft the speeches prepared by my noble and learned friends, Lord Bridge of Harwich and Lord Oliver of Aylmerton. I agree with them, and for the reasons stated in their speeches, would allow the appeals and would dispose of the cases in the ways proposed by them. LORD BRANDON OF OAKBROOK[77]My Lords,[78]I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Bridge of Harwich and Lord Oliver of Aylmerton. I agree with them, and for the reasons given by them would allow the appeals and dispose of the cases in the ways proposed by them. LORD ACKNER[79]My Lords,[80]I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lords Bridge of Harwich, Lord Fraser of Tullybelton and Oliver of Aylmerton. I also would allow the appeals. In the case of Leech I would quash the adjudication against him on 16 April 1985 in respect of which the award has already been remitted. In the case of Prevot I agree that the application should now be remitted for determination to the Queen's Bench Division. LORD OLIVER OF AYLMERTON[81]My Lords,[82]The question raised by these appeals is whether the decision of a prison governor made in the exercise of the disciplinary powers conferred upon him by the Prison Rules 1964 over prisoners in his care is subject to review by the High Court pursuant to Order 53 of the Rules of the Supreme Court.[83]The office of a governor of a prison is the creation of statute, currently the Prison Act 1952, which provides, in section 7(1), that every prison shall have "a governor . . . and such other officers as may be necessary." The statute itself tells us nothing of the duties to be fulfilled by the holder of the office. Section 47(1), however, provides that the Secretary of State may make rules "for the regulation and management of prisons . . . and for the classification, treatment, employment, discipline and control of persons required to be detained therein," and it is in the Prison Rules 1964 made under this power (as amended in 1974) that the relevant duties and powers of a prison governor are to be found. Subsection (2) of section 47 provides "Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case." Before passing to the rules reference should also be made to section 6 of the Act. In subsection (1) of that section, provision is made for the constitution of visiting committees in relation to prisons to which persons may be committed directly by a court. Subsection (2) of the section obliges the Secretary of State to appoint for every prison other than the prison mentioned in subsection (1) a board of visitors, of whom, not less than two shall be justices of the peace. Subsection (3) provides:
"Rules made as aforesaid shall prescribe the functions of visiting committees and boards of visitors and shall among other things require members to pay frequent visits to the prison and hear any complaints which may be made of the prisoners and report to the Secretary of State any matter which they consider it expedient to report; and any member of a visiting committee or board of visitors may at any time enter the prison and shall have free access to every part of it and to every prisoner."
[84]Turning to the rules (as amended), they confer or impose upon the governor a variety of administrative or executive powers and duties. Examples are the duty to provide information regarding the provisions of the rules (rule 7), the duty to hear applications from prisoners requiring interview (rule 8), the duty to inform relatives in the event of illness or death (rule 19), the duty to take charge of prisoners' property (rule 41), power to provide special facilities for unconvicted prisoners (rule 25), power to permit additional visits or letters (rule 34), and power to order temporary confinement or restraint in cases of violent or refractory prisoners (rules 45 and 46). Rule 98 permits the governor, with the leave of the Secretary of State, to delegate his powers and duties to another officer. It should also be mentioned at this stage that, under rule 5, a prisoner serving a sentence of more than one month may be granted remission for good conduct up to, for practical purposes, one third of his sentence. It is common ground that such remission, although discretionary, forms part of a prisoner's normal and reasonable expectation.[85]For present purposes, the critically important rules are those which concern disciplinary offences and which regulate the hearing and disposal of charges of infractions of prison discipline made against prisoners. These are contained in rules 47 to 56 (inclusive) and it is necessary to refer to them in a little detail. Rule 47 contains a list of 21 offences against discipline, ranging from mutiny and gross personal violence to idleness and disobedience of lawful orders. The list includes the general offence of offending "against good order and discipline" which has a particular relevance in the case of Prevot. Rules 48 and 49 are important and must be set out in full. They provide:
"48.(1) Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible. (2) A prisoner who is to be charged with an offence against discipline may be kept apart from other prisoners pending adjudication. (3) Every charge shall be inquired into in the first instance, by the governor. (4) Every charge shall be first inquired into not later, save in exceptional circumstances, than the next day, not being a Sunday or public holiday, after it is laid. 49.(1) Where a prisoner is charged with an offence against discipline, he shall be informed of 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."
[86]Punishments for offences are provided for in rules 50, 51, and 52. It is unnecessary to recite these in detail. The general scheme of the rules is to divide offences into three categories, that is to say, offences simpliciter, graver offences (such as escape, assaulting an officer or violence to other persons) and especially grave offences (mutiny or incitement to mutiny or gross personal violence to an officer). In the case of the first category, the governor is empowered, by rule 50, to impose penalties ranging from a caution to forfeiture of remission for a period of up to 28 days. These penalties are strictly limited. For instance, forfeiture of privileges and stoppage of pay cannot exceed 28 days, exclusion from associated work cannot exceed 14 days, and cellular confinement cannot exceed three days. In the case of the graver offences which are dealt with in rule 51 the governor must, unless he dismisses the charge, inform the Secretary of State and, unless otherwise directed by him, refer the charge to the board of visitors. Under sub-rule (2) he has a discretion, where a prisoner is charged with serious or repeated offences for which the governor's potential awards under rule 50 appear inadequate, to refer the charge to the board of visitors after investigation. Sub-rules (3) and (4) of rule 51, provide as follows; "(3) Where a charge is referred to a committee or board under this rule, the Chairman thereof shall summon a special meeting at which not more than five nor fewer than two members shall be present. (4) The board so constituted shall inquire into the charge and, if they find the offence proved, shall make one or more of the following awards: . . " . ."[87]There follows a list of possible penalties which may be imposed by the board of visitors and which correspond with those which may be imposed by the governor himself under rule 50, but with substantially higher ceilings on the length of time for which the penalties may continue. Thus, exclusion from associated work, stoppage of earnings and cellular confinement may be imposed for up to 56 days, and loss of remission for up to 180 days.[88]In the case of the third category of especially grave offences the governor is again obliged by rule 52, to inform the Secretary of State and, unless otherwise directed, to refer the charge to the board of visitors. In this case, however, he has no power to dismiss the charge himself. The range of penalties which may be imposed is, for relevant purposes the same as that applicable under rule 51, save that forfeiture of remission is not limited to 180 days. Rule 55 empowers both the governor and the board of visitors to suspend awards of forfeiture of remission and to activate a suspended award, by whomsoever imposed. Thus circumstances may occur in which an adjudication by a governor may result not only in the award of a penalty on the scale provided by rule 50 but also in the activation of a much heavier penalty previously imposed by a board of visitors but suspended by them.[89]Rule 56 is of some importance and requires to be set out in full. It provides: "(1) The Secretary of State may remit a disciplinary award or may mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe. (2; Subject to any directions of the Secretary of State, the governor may remit or mitigate any disciplinary award.[90]Thus it will be seen that, in relation to discipline, the governor and the board of visitors perform, in broad outline, substantially the same function, namely that of inquiring into and, if appropriate, imposing punishment for disciplinary offences. The differences lie only in the time-scale within which the functions are to be performed and the severity of the punishments which can be awarded.[91]The events leading up to these appeals can be shortly summarised. In the case of the appellant Leech, who was at the material time serving a sentence of five years imprisonment in Parkhurst Prison, he was charged with a disciplinary offence, (being in possession of a device adapted for the smoking of a controlled drug) and appeared before the deputy-governor on 14 March 1985, when he pleaded not guilty. An adjourned hearing took place on 16 April 1985 when he was found guilty and awarded 28 days loss of remission. He petitioned the Secretary of State, complaining that he had been found guilty before being given the opportunity for which he had asked to cross examine a witness. The Secretary of State evidently considered the conviction unsafe and, in June 1985, remitted the penalty under rule 56, although for some unexplained reason this was not noted upon the prisoner's prison record until very much later. Even when it was entered, the reference to the conviction before the deputy-governor remained, the view then taken by the Home Office being that the Secretary of State had no power to quash the conviction, his power under rule 56 being only to remit or mitigate the award. That is a matter of some moment because, as your Lordships have been told, the prison record not only operates during the period in which the prisoner remains detained in the prison but follows him from prison to prison and is preserved and may be referred to in the event of his offending again and serving a further term of imprisonment. It having come to the notice of this appellant that the conviction still remained on his record, he petitioned the Secretary of State on 8 October 1985 to have it removed. On 23 December 1985 the Secretary of State replied stating that he had no power to remove the adjudication from the record. The appellant then applied for leave to apply for judicial review. That was refused by Mann J. on 22 April 1986 but a renewed application for leave to the Court of Appeal was granted on 10 September 1986. At the same time the Court of Appeal, in the light of the previous decision Reg. v. Deputy Governor of Camphill Prison, Ex parte King [1985] 1 Q.B. 735 (referred to below), felt bound to dismiss the substantive application for judicial review. Leave to appeal was granted to your Lordships' House on 6 November 1986, at which date the appellant had been released. It appears that he is now serving a further sentence of imprisonment.[92]In the case of the appellant Prevot, he was at the material time serving a sentence of 14 years in Long Lartin prison. On 31 December 1986 he appeared before the deputy-governor of the prison charged with offending against good order and discipline. That charge arose out of alleged indecent conduct between the appellant and his wife in the course of a prison visit. Initially, he declined to plead. After an adjournment, the adjudication was resumed on 6 December. The appellant then sought to have the charge dismissed on the ground that he had been charged under the wrong paragraph of rule 47. That was refused and he then applied to call 18 witnesses and a prison officer. That application was also refused. He was found guilty and awarded 21 days loss of remission and six days exclusion from associated work. He petitioned the Secretary of State but his petition was rejected. The appellant then applied for leave to apply for judicial review both of the deputy-governor's adjudication and of the Secretary of State's decision. On 18 May 1987 Stuart-Smith J. refused leave as regards the adjudication of the deputy-governor but granted leave as regards the decision of the Secretary of State. A renewed application for leave in relation to the adjudication of the deputy-governor was made to the Court of Appeal on 15 June 1987. The Court granted the application for leave but dismissed the substantive application and granted leave to appeal to your Lordships' House. In both cases the appellants claim, rightly or wrongly, that the proceedings before the deputy-governors were not conducted fairly and that they were denied a proper opportunity to present their respective cases before being found guilty and penalised. That is accepted in the case of Leech and it may or may not be so in the case of Prevot. Your Lordships do not have ail the material required to determine that question and are not called upon to adjudicate on it. What is in issue is not the obligation of the prison governor, in adjudicating upon a disciplinary charge, to act fairly and in accordance with the principles of natural justice, which is accepted by the respondents, but the question of whether, even assuming the want of fairness in the adjudication, it can be made the subject-matter of inquiry and review in proceedings under Order 53 at all. The issue is thus jurisdiction, not discretion.[93]The principles governing the jurisdiction of the High Court to review decisions of statutory bodies are now well established and scarcely need reiteration. It is clear, in particular, since the decision of your Lordships house in Ridge v. Baldwin [1964] AC 40 , that the susceptibility of a decision to the supervisory jurisdiction of the court does not rest upon some fancied distinction between decisions which are "administrative" and decisions which are "judicial" or "quasi-judicial". The principles have been reviewed in the authoritative exegesis of Lord Diplock in O'Reilly v. Mackman [1983] 2 AC 237 and are encapsulated in the following passage from his speech at p. 279:
"The pre-1977 Order 53, like its predecessors, placed under considerable procedural disadvantage applicants who wish to challenge the lawfulness of a determination of a statutory tribunal or any other body of persons having legal authority to determine questions affecting common law or statutory rights or obligations of other persons as individuals. It will be noted that I have broadened the much cited description by Atkin L.J. in Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B. 171, 205 of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative remedies (which in 1924 then took the form of prerogative writs of mandamus, prohibition, certiorari, and quo warranto) by excluding Atkin L.J.'s limitation of the bodies of persons to whom the prerogative writs might issue, to those "having the duty to act judicially."
For the next 40 years this phrase gave rise to many attempts with varying success, to draw subtle distinctions between decisions which were quasi-judicial and those that were administrative only. But the relevance of arguments of this kind was destroyed by the decision of this House in Ridge v. Baldwin [1924] A.C. 40, where again the leading speech was given by Lord Reid. Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made."[95]That a board of visitors called upon to adjudicate upon a disciplinary offence is a body authorised and required to make a decision of the kind described by Lord Diplock in the passage quoted is, in my judgment, incontrovertible. That the decision of such a board can properly be made the subject-matter of a judicial review was indeed established as long ago as 1978 in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425, a decision of the Court of Appeal, which was expressly approved in O'Reilly v. Mackman [1983] 2 AC 237 . No challenge to the correctness of that decision has been raised before your Lordships and the argument of the respondents has rested, as indeed it has had to rest, upon distinguishing an adjudication by a prison governor from an adjudication by a board of visitors. That was a distinction which, in the case of Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1978] Q.B. 678 at first instance, Lord Widgery had found himself unable to draw. He felt unable to entertain the possibility of the adjudication by a prison governor being open to review by the court and he was thus led to the conclusion that a review of an adjudication by a board of visitors was likewise impossible.[96]The Court of Appeal [1979] Q.B. 425 took a different view, Shaw L.J. being of the opinion that the two cases were indistinguishable in principle and that decisions of prison governors and of boards of visitors were equally the subject-matter of judicial review. Megaw L.J. and (though perhaps less decisively) Waller L.J., thought that the position of the governor of the prison was clearly distinguishable from the position of the board of visitors and that distinction in the case of Megaw L.J., formed, as I read his judgment, part of the ratio of his decision. The grounds for drawing the distinction are contained in the following passage from his judgment (at pp. 447 and 448):
"To my mind, contrary to the submission put forward by the board of visitors in their respondents' notice, while the board of visitors have numerous other functions connected with the administration of the prison, their function in acting as a judicial tribunal in adjudicating on charges of offences against discipline, and in making awards consequent on findings of guilt, is properly regarded as a separate and independent function, different in character from their other functions. It is materially different, in my judgment, from the function of the governor in dealing with alleged offences against discipline. While the governor hears charges and makes awards, his position in so doing corresponds to that of the commanding officer in military discipline or the schoolmaster in school discipline. His powers of summary discipline are not only of a limited and summary nature but they are also intimately connected with his functions of day-to-day administration. To my mind both good sense and the practical requirements of public policy make it undesirable that his exercise of that part of his administrative duties should be made subject to certiorari."
To similar affect was Waller L.J., at p. 462:
"Nevertheless I find it difficult to visualise any circumstances in which certiorari would lie against the governor. His decisions are an intimate part of the disciplinary system of the prison. At the lowest level discipline is maintained in accordance with rule 2. It is the face-to-face discipline which is maintained by the prison officer on the landing, in the prison yard or in the prison workshops. Example and leadership are required, and such firmness as may be necessary. It is only when this level of control fails in some way that the governor is brought into the picture. Rule 47 sets out 21 specific offences against discipline of varying degrees of seriousness. Every charge has first to be inquired into not later than the next day after it is laid (other than a Sunday or public holiday) (see rule 48(4)) and no doubt in the majority of the less serious offences is disposed of. I agree with the passage and the judgment of Lord Widgery C.J. which I have already quoted, in which he emphasises the importance of the officer charged with maintaining discipline not being interfered with by the court. The important question that we have to consider, however, is whether this principle extends to boards of visitors."
[97]The contrary view was expressed by Shaw L.J. thus at p. 455:
"Now the rights of a citizen, however circumscribed by a penal sentence or otherwise, must always be the concern of the courts unless their jurisdiction is clearly excluded by some statutory provision. The courts are in general the ultimate custodians of the rights and liberties of the subject, whatever his status and however attenuated those rights and liberties may be as the result of some punitive or other process. Although rule 7(1) impliedly enables a prisoner to petition the Secretary of State in respect of some grievance or deprivation, there is nowhere in the Act of 1952 or the rules made under it, any indication that such rights, however attenuated, as he may still possess are not cognisable in a court of law. Once it is acknowledged that such rights exist the courts have function and jurisdiction. It is irrelevant that the Secretary of State may afford redress where the rules have been infringed or their application has been irregular or unduly harsh. An essential characteristic of the right of a subject is that it carries with it a right of recourse of the courts unless some statute decrees otherwise. What should be the nature and measure of the relief accorded must be a matter for the courts. Public policy or expediencey as well as merits may be factors to consider and they may influence the answer to any application for relief; but to deny jurisdiction on the grounds of expediency seems to me, with all respect to the views expressed in the judgment of Lord Widgery C.J. in the Divisional Court [1978] Q.B. 678, to be tantamount to abdicating a primary function of the judiciary."
[98]Shaw L. 3. continued at p. 456 as follows:
"It may be inexpedient or perhaps stultifying in relation to prison discipline that recourse to the courts should be available to a prisoner who advances some capricious complaint as to the manner in which he has been disciplined. There are no finite limits to the extent of the jurisdiction of the High Court in this regard. The practical limits are sought in the exercise of the power to grant relief which is always a matter of discretion . . . ." "
It is readily understandable that discipline in a prison may be weakened if its exercise can be challenged in the courts; but until Parliament chooses to enact that the proceedings of a board of visitors in their disciplinary function, however conducted, shall be free from supervision or control by the High Court, the scope of their inherent jurisdiction must, in my view, include such proceedings. I do not for my part find it easy, if at all possible, to distinguish between the disciplinary proceedings conducted by a board of visitors and those carried out by a prison governor. In each case the subject-matter may be the same; the relevant fundamental regulations are common to both forms of proceeding. The powers of a governor as to the award he can make (which really means the punishment he can impose) are more restricted than those of a board of visitors in a corresponding situation; but the essential nature of the proceedings as defined by the Prison Rules is the same. So, in nature if not in degree, are the consequences to a prisoner."[99]Despite the cogently argued views of Shaw L.J., the proposition that an adjudication by a prison governor was not susceptible to judicial review, which was not, of course, directly an issue in St. Germain's case [1979] Q.B. 425, appears to have remained unchallenged until 1984. However, in Reg. v. Deputy Governor of Camp Hill Prison, Ex party King the point arose directly. It resulted in a division of opinion in the Divisional Court whose decision is unreported. Both Kerr L.J. and Glidewell J. agreed that in the case before them the application for judicial review failed on the merits, but they were divided upon the question whether the application could properly be entertained at all. Kerr L.J., like Shaw L.J. in St. Germain , could find no logical distinction between the case of the prison governor and the board of visitors and would have held that the court had jurisdiction. Glidewell J. took the opposite view. He said:
"As to the nature of the governor's decision and the process by which he makes it, it is self-evident that in a prison the maintenance of good order and discipline is of fundamental importance. It follows in my view that when the governor is holding an inquiry into and adjudicating upon a disciplinary offence, he is exercising a part of his overall function of governing the prison, not a separate and distinct function. In this way, his exercise of the powers of summary discipline can be distinguished from the exercise by the board of visitors of their judicial function."
[100]In the Court of Appeal [1985] Q.B. 735 the view of Glidewell J. prevailed and it was held in terms, that the court had no jurisdiction to entertain the application. Substantially the ground for the decision was that, for the smooth administration of the prison system, public policy required that any challenge to the adjudication of the prison governor should be dealt with entirely within the framework of the prison system and that the responsibility for overseeing a governor's decisions should rest solely with the Secretary of State who, under section 4(2) of the Prison Act 1952, has the responsibility for ensuring that the provisions of the Act and of any rules made thereunder are duly complied with. Thus it was that, in the instant appeals, the Court of Appeal, conceiving rightly that it was bound by the decision in King 's case, dismissed both the substantive applications.[101]Moreover, in Reg. v. Governor of the Maze Prison, ex Parte McKiernan (as yet unreported) the Court of Appeal of Northern Ireland reached a conclusion, in substantially indistinguishable circumstances, diametrically opposed to that arrived at by the Court of Appeal in England in King 's case [1985] 1 Q.B. 735. Both Lord Lowry C.J. and O'Donnell L.J. found themselves incapable of discerning any logical distinction between adjudications between a prison governor and adjudications by a board of visitors. Indeed it was conceded before them by the respondents that there was no essential difference. It followed, therefore, that unless some other reason could be adduced for excluding the former from judicial review, the decision in St. Germain's case [1979] Q.B. 425 necessarily involved that the governor's decisions should equally be reviewable. The only reason suggested which had any application in Northern Ireland was public policy and that, the court held, was a matter for the legislature and not the court. There was, in any event, an equally important consideration of public policy enshrined in the decision of this House in Raymond v. Honey [1983] 1 AC 1 that a citizen should have unimpeded access to the courts unless such right has been expressly removed by statute.[103]There is thus, as the matter now comes before your Lordships, a clear conflict of view between the Court of Appeal in England and the Court of Appeal in Northern Ireland. My Lords, I am sensible of the inconvenience which may be occasioned in the administration of the prison system by over-frequent and possibly capricious applications for review by the court of decisions of prison governors. Those who are detained in custody are not usually slow to exercise any available right to challenge established authority. The conclusion that such disciplinary decisions are open to challenge in the High Court is, therefore, one at which I arrive with a degree of reluctance. Nevertheless, as Lord Atkin observed in General Medical Council v. Spackman [1943] A.C. 627, 638, "convenience and justice are often not on speaking terms" and I have, for my part, been compelled to the conclusion that the reasoning of the Court of Appeal in Northern Ireland in the McKiernan case and of Kerr L.J. in King's case [1985] 1 Q.B. 735 is to be preferred to that of the Court of Appeal in England in the latter case. It is not in contest that the decision of the Secretary of State under rule 56 is a decision which is subject to the supervision of the court by way of judicial review. It is, however, submitted on behalf of the respondents that up to that point there is, as it were, a self-contained administrative system into which the court should not and must not trespass, the interests of justice being adequately served by the amenability to the court's supervision of the person ultimately responsible for the proper administration of the system, including the fair and just enforcement of discipline within that system, i.e. the Secretary of State. I have not felt able to accept this, for the starting point of the inquiry appears to me to be that the prison governor is not a mere servant or alter ego of the Secretary of State but a statutory officer performing statutory duties. Many of those duties are of a purely administrative nature and involve no adjudicatory function at all. But the function of adjudicating upon charges of infractions of prison discipline is not one which involves merely the performance of a duty concerning some private right, as for instance in the case of the governing body of the social club or a trade union. It is a public function which affects the liberty and, to a degree, the status of the persons affected by it. As such it must, as it seems to me, be subject to the general common law principle which imposes a duty of procedural fairness when a public authority makes a decision not of a legislative nature affecting the rights, privileges and interests of individuals. It is, in my judgment, no answer to say that a decision made in exercise of such a function is "administrative" or "disciplinary" or that it cannot be separated from the overall function of prison management, and, as I have already observed, it is not contended that in making such a decision the governor is absolved from any duty to act fairly or to observe the principles of natural justice. All that is said is that if he fails in that duty, his failure cannot be challenged through the machinery of the court, the only control over unfairness, prejudice or caprice being that exercisable by the Secretary of State.[104]I start, therefore, from the position that the decision of the governor of a disciplinary charge against a prisoner is one which has ail the attributes of the kind of decision to which Lord Diplock referred in the passage already cited from his speech in O'Reilly v. Mackman [1983] 2 AC 237 and which, therefore, is prima facie one which is amenable to the court's jurisdiction to review. One asks, therefore, what is there, if anything, in the nature of such a decision or the circumstances in which it falls to be made that ousts the jurisdiction of the court? - for it is, I think, quite clear - and, indeed, this was, as I read the decision, accepted by the Court of Appeal in King's case [1985] Q.B. 735 -that there is no relevant distinction between an adjudication by a prison governor and one by a board of visitors, so far as concerns the application of the ordinary rules of fairness, the effect on the subject, or the consequences of improper performance of the duties cast upon them respectively, except purely one of degree. Lawton L.J. in King's case perceived a functional distinction between the two types of adjudication. The governor's function, including that of adjudicating upon disciplinary charges, he regarded as exclusively managerial. Contrasting the position of the board of visitors, he observes, at p. 749:
"They have no managerial functions. They do not have to maintain discipline from day to day. They are an independent and impartial body, whose function in relation to disciplinary offences is essentially judicial. Such judicial functions as a governor has are but one aspect, and a minor one, of his managerial functions. It would be difficult to separate his judicial functions from his management ones without impairing his ability to discharge the latter. In my judgment, as a matter of common sense and public policy the court should not try to do so."
[106]This was, I think, in substance a reiteration of the position adopted by Megaw and Waller L.JJ. in St. Germain's case [1979] Q.B. 425 and exemplified in the passage from the judgment of Megaw L.J. in that case at p. 447 to which I have already referred. My Lords, I have not, for myself, felt able to subscribe to this. Whilst it is no doubt perfectly true that the governor's primary responsibility and concern is the administration of the prison and that the maintenance of discipline is one aspect of that administration, this does not appear to me to provide any ground, except purely as a matter of policy and convenience, for excluding the supervisory jurisdiction of the court, for it is not the label of "administration" or "management" that determines the existence of jurisdiction but the quality and attributes of the decision. In the ultimate analysis the decision in King 's case rested upon policy and convenience. Neither Griffiths nor Browne-Wilkinson L.JJ. felt able to point to any logical distinction between an adjudication by a governor and an adjudication by a board of visitors, but they felt impelled by considerations of what they regarded as the unacceptable consequences of the susceptibility of a governor's decision to judicial review to deny jurisdiction in that case. They felt able to justify the implication of such a limitation as a matter of public policy by the consideration that, by section 4(2) of the Act of 1952, Parliament had cast upon the Prison Commissioners the duty to examine "the conduct of officers, the treatment and conduct of prisoners and all other matters concerning management of prisons" and to "ensure that the provisions of this Act and of any rules made under this Act are duly complied with." That duty was, in 1963 transferred to the Secretary of State, pursuant to the Prison Commissioner's Dissolution Order 1963 (S.I. 1963 No. 597). Thus, it was said, a prisoner aggrieved by an excess or abuse of power by the governor was not, by reason of the absence of any jurisdiction in the court to review the governor's decisions, deprived of a remedy. It was open to him to petition the Secretary of State who had the duty and power to correct errors under the section and whose decision, if reached in breach of his implied duty under the section to act fairly, could itself be impeached by judicial review. For my part, I have not found this reasoning persuasive. To begin with, I am not by any means convinced that the section did, on its true construction, confer upon the Prison Commissioners, by virtue of a general injunction to ensure that the rules are duly complied with, any power to overrule or to correct a prison governor's disciplinary adjudication, and the Secretary of State cannot derive from this section any greater power than was originally conferred upon the Prison Commissioners. But even assuming that the section has the effect suggested, it does not, to my mind, really touch the central question. An alternative remedy for abuse or excess, whether effective or not, may be a factor, and a very weighty factor, in the assesment of whether the discretion which the court undoubtedly has to grant or refuse judicial review should be exercised. But it cannot, as I see it, bear on the question of the existence of the jurisdiction. Equally, if it is prayed in aid as a consideration in favour of declaring as a matter of public policy, that the common law jurisdiction prima facie applying ought not to exist in the case of this particular category of decision, there appears to me to be a convincing answer, as was pointed out by Lord Lowry C.J. in McKiernan 's case, in the countervailing consideration of public policy expressed in the speech of my noble and learned friend Lord Bridge of Harwich, in Raymond v. Honey [1983] 1 AC 1 when he said, at p. 14F-G:
"I gratefully adopt the summary of the facts set out in the speech of my noble and learned friend Lord Wilberforce, and his statement of the two basic principles to be applied; first, that any act done which is calculated to obstruct or interfere with the course of justice, or the lawful process of the courts, is a contempt of court; secondly, that a convicted prisoner in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. To these I would add a third principle, equally basic, that a citizen's rights to unimpeded access to the courts can only be taken away by express enactment . . . . "
[108]Whatever else section 4(2) may do, it certainly does not constitute a clear and unambiguous expression of the will of Parliament that the prima facie right to apply for judicial review should be removed. Mr. Laws has not sought to argue that the courts should dictate that, as a matter of public policy, the jurisdiction in judicial review should be excluded - a matter which, as I understand his argument, he concedes is properly a question for Parliament. What he submits is that it is wrong to ask what he describes as the "static" question - is the body whose adjudication it is sought to review a public body whose decisions affect the rights of the subject? The true question, he submits, is what he describes as the "dynamic" one - is the court's intervention needed in order to secure fairness to the subject? In suggesting a negative answer to that question, Mr. Laws submits that the Act and the rules (and, particularly, section 4(2) and rule 56) indicate what may be described as a self-contained or hermetic system within which the whole range of prison administration is kept within the purview of the Secretary of State. He does not and indeed cannot suggest that this amounts to the distinct expression of a parliamentary intention that decisions made by governors should be exempted from the ordinary jurisdiction of the court, but he suggests that the approach to be adopted to any intervention of the court's jurisdiction to review is to be determined by first asking an initial question which lies at the threshold - is the court's intervention needed? Having regard to the self-contained nature of the system of prison administration, he answers that question in the negative and, hence, as a corollary submits that the jurisdiction, because not needed, does not exist. There is in my judgment, a basic fallacy in this approach, quite apart from the fact that it is entirely unsupported by authority. It has never previously, so far as I am aware, been suggested that the mere existence of an alternative remedy, of itself and by itself, ousts the jurisdiction of the court, though it may be a powerful factor when it comes to the question of whether the discretion to review should be exercised. I can see, of course, that if the existence of the separate and self-contained remedy is a conclusive factor against the exercise of discretion in every case, so that the discretion could never be exercised in favour of judicial review, that is tantamount to saying that, for practical purposes, the jurisdiction does not exist. But I find it quite impossible to attribute such a result to the statutory framework governing prison administration and it would, in any event, equally have the effect of ousting the jurisdiction in the case of a board of visitors who are equally a part of the administrative system. As has already been observed, no challenge is made to the correctness of the decision in St. Germain's case [1979] 1 Q.B. 425. An alternative argument seeks to distinguish between the governor and the board of visitors. First it is said that whereas the governor is part of the prison system the board of visitors stands outside it and is exercising a pastoral rather than a management function. Secondly it is said that governor's adjudications are expected to be more summary and "on-the-spot" than those of the board. I do not find that either of these distinctions really helps the respondents. Granted that, in addition to their adjudicatory functions, the board of visitors fulfil a pastoral role, this leads nowhere, for, whether "pastoral" or not, in essence both the visitors and the governor are exercising, in relation to disciplinary charges, the same disciplinary jurisdiction. As to the proposition that the rules provide for a more summary procedure in the case of governors' adjudications, this may be true, but again it has no bearing upon the nature of the jurisdiction being exercised or upon the need for procedural fairness in exercising it. This submission is, in fact, merely to advance in a slightly different form the analogy of the commanding officer or the schoolmaster propounded in the judgment of Megaw L.J. in St. Germain's case [1979] 1 Q.B. 429. In common with Lord Lowry C.J. I do not find either analogy convincing. The quasi-parental relation of a schoolmaster to his pupil is, in my judgment, no analogy at all, and as to the case of the commanding officer, I entertain, with Lord Lowry C.J., some doubt whether it can be said to be either firmly established by authority or universally self-evident that judicial review can never in any circumstances lie in respect of his disciplinary adjudication. That question, in any event, can be better determined if and when it arises. There are no doubt good reasons why, in the interest of administrative convenience, Parliament, in enacting the Prison Act and conferring upon the Secretary of State the power to make rules for the management of prisons, could properly have taken the course of expressly excluding a prisoner from access to the courts while serving his sentence. But Parliament has not done so and I do not, for my part, think that it could be right for your Lordships in the name of pragmatism or of public policy, to take the step which Parliament omitted to take and, by denying in practice a jurisdiction which cannot be denied in logic, to impose in the case of a particular class of decision-maker an administrative substitute for the supervision of the court. Such a substitute would not in fact, as I believe, be an effective substitute and that, by itself, may provide the answer to Mr. Law's dynamic question. A review of a governor's decision by, effectively, a civil servant with access only to the paper record, even assuming that the Secretary of State has the power, which he has previously disclaimed, not only to remit an award but to expunge a conviction, must in its very nature be less than satisfactory in many cases. One has to postulate, for the question to be a live one at all, that there has been an error of law or an abuse or excess of power - one hopes an unlikely occurrence, but that is the postulate. That may and almost certainly will in some cases involve questions of fact which are inevitably more appropriately dealt with by the court. It is no answer to say that the Secretary of State's decision is itself subject to review for upon such a review the court would not have the opportunity of sifting the facts in relation to the original governor's decision but only those in relation to the decision of the Secretary of State immediately under review.[109]The consequences of the possibility of review by the court were described by Browne-Wilkinson L.J. in the Court of Appeal in King 's case [1985] 1 Q.B. 735 as "frightening," but I found myself less and less impressed by this consideration as the argument progressed. The decision in St. Germain's case [1979] 1 Q.B. 425 that adjudications by boards of visitors could be the subject-matter of judicial review has not, so far as I am aware, resulted in a torrent of capricious or frivolous applications. Your Lordships have been told that there have been since the decision in St. Germain some 70 cases of applications for leave to apply for judicial review in the case of visitors' adjudications in which leave has been granted. Your Lordships have also been told that in Northern Ireland, admittedly with a very much smaller prison population than exists in England, there have been some 26 successful applications for leave since the decision in McKiernan in June 1985. It appears that eight of those applications terminated in an order for judicial review of a decision. For my part, therefore, I think that the spectre of the courts being flooded with frivolous applications for leave to apply for judicial review is likely to be more illusiory than real. That sort of prediction can, of course, always be wrong, but if it is, the remedy, in the end, lies in the hands of the courts or, in the ultimate analysis, with Parliament. To say that jurisdiction exists to entertain an application for leave goes nowhere towards establishing that the discretion to grant judicial review will necessarily be exercised and, for my part, I agree with Shaw L.J. in St. Germain when he observed that the practical limits are to be sought in the exercise of the power to grant relief which is always a matter of discretion. In my judgment, the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, upon the nature and consequences of the decision and not upon the personality or individual circumstances of the person called upon to make the decision. I have, in the end of all, found myself unpersuaded not only that the position of a prison governor in relation to disciplinary adjudications can be logically distinguished from that of a board of visitors, but also that any sound or convincing reasons exist for holding that such adjudications should be treated so far as judicial review is concerned, in any different way. I find the judgments of Shaw L.J. in St. Germain and of Kerr L.J. in the Divisional Court in King , wholly persuasive.[110]Since writing this speech I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Bridge of Harwich. I entirely concur with everything that he has said and agree that the appeal should be allowed, with the consequences that he has indicated.

Cited in 27 later judgments

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