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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545

GEOFFREY LANE LJ:....These are seven motions for orders of certiorari against the board of visitors of Hull prison and one application for a similar order directed to the board of visitors of Wandsworth prison.

All these matters, except the Wandsworth case which can be dealt with separately, arose out of a riot which took place at Hull Prison from 31 August to 2 September 1976. Serious damage was done to the prison which made it largely uninhabitable. The inmates or most of them were dispersed to other prisons.

It was decided not to take criminal proceedings against the rioters but to deal with them internally under the prison disciplinary procedure. For reasons which will become apparent when the statute and regulations are examined, the task of adjudicating on the various allegations fell on representatives of the board of visitors of Hull prison.

The adjudication took place on various dates during November and December 1976. Applications for judicial review of the findings were made during the early part of 1977. The matter first came before the Divisional Court on 5 December 1977 when the contention of the board of visitors that the court had no jurisdiction to entertain the application was upheld. On 3 October 1978 the Court of Appeal reversed that decision on the grounds that the board of visitors, when adjudicating on disciplinary charges, were performing a judicial, and not merely an administrative, act, that they had a duty to act judicially and that their decisions were in principle subject to judicial review by way of certiorari (see R v Hull Prison Board of Visitors, ex parte St Germain).

We turn now to the statutory provisions and regulations so far as they are material. Section 47 of the Prison Act 1952 provides that the Secretary of State may make rules for the regulation and management, inter alia, of prisons and for the discipline and control of persons required to be detained therein. Subsection (2) 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'....

In our judgment the statutory obligation to make the rules, and r 49(2) in particular, are merely declaratory of one of the basic rules of natural justice, namely that every party to the controversy has a right to a fair hearing. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them (per Lord Denning in Kanda v Government of the Federation of Malaya ([1962] AC 322 at 337(338))....

Rule 50 deals with the powers of prison governors to make awards for offences against discipline. In respect of graver offences as defined by r 51, the governor shall, unless he dismisses the charge, forthwith inform the Secretary of State and shall, unless otherwise directed by him, refer the charge to the board of visitors. Rule 52 provides that where a prisoner is charged with mutiny or incitement to mutiny or doing gross personal violence to an officer, then, where such a charge is referred to a board of visitors, the chairman shall summon a special meeting of which not more than five nor fewer than three members, at least two being justices of the peace, shall be present....

Megaw LJ in his judgment in R v Hull Prison Board of Visitors, ex parte St Germain ([1979] 1 All ER 701 at 713, [1979] 2 WLR 42 at 57) referred to the submissions of counsel that proceedings of boards of visitors for offences against discipline are subject to judicial review, at any rate where the allegations are of breaches of the procedure laid down in the Prison Rules and/or rules of fairness and natural justice. He said ([1979] 1 All ER 701 at 713, [1979] 2 WLR 42 at 57):

"I think that is too widely stated. It is certainly not any breach of any procedural rule which would justify or require interference by the courts. Such interference, in my judgment, would only be required, and would only be justified, if there were some failure to act fairly, having regard to all relevant circumstances, and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which was capable of remedy".

He further pointed out that which has been frequently stated recently, that it would be fallacious to assume that the requirements of natural justice in one sphere are necessarily identical in a different sphere.....

Broadly speaking each applicant complains that he was not given a 'proper opportunity of presenting his case', and that the board of visitors failed to observe the elementary rules of fair play or natural justice.... In particular there are four specific complaints: (1) that the board of visitors refused to allow the applicants to call witnesses in support of their cases; (2) that they admitted and acted on statements made during the hearing by the governor which were based on reports from prison officers who did not give oral evidence; (3) that the chairman of the board of visitors insisted on questions by the applicants in cross-examination being channelled through him; and (4) that the applicants were not allowed to speak in mitigation after a finding of guilt.

Counsel accepted that it was perfectly proper for a chairman to insist that all questions were put through him where he was of the view that otherwise arguments would break out between the prisoner and the witness, which would make the proceedings difficult to control. There was some suggestion that the chairman should have no discretion to disallow the calling of a witness whose attendance is requested by the prisoner. This suggestion was largely withdrawn in the course of argument and we do not think it had any validity....

However, that discretion has to be exercised reasonably, in good faith and on proper grounds. It would clearly be wrong if, as has been alleged in one instance before us, the basis for refusal to allow a prisoner to call witnesses was that the chairman considered that there was ample evidence against the accused.....

A more serious question was raised whether the discretion could be validly exercised where it was based on considerable administrative inconvenience being caused if the request to call a witness or witnesses was permitted. Clearly in the proper exercise of his discretion a chairman may limit the number of witnesses, either on the basis that he has good reason for considering that the total number sought to be called is an attempt by the prisoner to render the hearing of the charge virtually impracticable or where quite simply it would be quite unnecessary to call so many witnesses to establish the point at issue. But mere administrative difficulties, simpliciter, are not in our view enough....

[C]ounsel for the board of visitors urged that there was no obligation at all on the board to allow any witnesses to be called....

He based his submission essentially on Lord Loreburn LC's well-known speech in the House of Lords in Board of Education v Rice ([1911] AC 179 at 182, [1911(13] All ER Rep 36 at 38) where the following passage appears:

"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view".Counsel for the board of visitors relies on, in particular, the phrase 'need not examine witnesses'.... ".

In our view a fair chance of exculpation cannot in many cases by given without hearing the accused's witnesses, eg in a case of an alibi defence.... [I]n De Verteuil v Knaggs ([1918] AC 557 at 560)...that the Privy Council stated:

"Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice".

These words....imply, in our view, that the right to be heard will include, in appropriate cases, the right to call evidence. It would in our judgment be wrong to attempt an exhaustive definition as to what are appropriate cases, but they must include proceedings whose function is to establish the guilt or innocence of a person charged with serious misconduct. In the instant cases, what was being considered was alleged serious disciplinary offences, which, if established, could and did result in a very substantial loss of liberty. In such a situation it would be a mockery to say that an accused had been 'given a proper opportunity of presenting his case'...if he had been denied the opportunity of calling evidence which was likely to assist in establishing the vital facts at issue.

For completeness we should deal with a further submission of counsel for the board of visitors, namely that, since in many of the decided cases there were frequent references to a domestic tribunal being the master of its own procedure, the rules of natural justice can have no relevance to matters of procedure. This, in our judgment, is a fundamental misconception.... Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances. For a long time the courts have without objection from Parliament supplemented procedure laid down in legislation where they have found that to be necessary for this purpose....

So much for the calling of witnesses. We now turn to the suggestion that hearsay evidence is not permissible in a hearing before a board of visitors....

The matter was dealt with in...detail by Diplock LJ in R v Deputy Industrial Injuries Comr, ex parte Moore ([1965] 1 All ER 81 at 94, [1965] 1 QB 456 at 488) as follows:

"these technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer; but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue...".

However, it is clear that the entitlement of the board of visitors to admit hearsay evidence is subject to the overriding obligation to provide the accused with a fair hearing. Depending on the facts of the particular case and the nature of the hearsay evidence provided to the board of visitors, the obligation to give the accused a fair chance to exculpate himself, or a fair opportunity to controvert the charge...may oblige the board of visitors not only to inform the accused of the hearsay evidence but also to give the accused a sufficient opportunity to deal with that evidence....[A] sufficient opportunity to deal with the hearsay evidence may well involve the cross-examination of the witness whose evidence is initially before the board in the form of hearsay....

[T]here may well be occasions when the burden of calling the witness whose hearsay evidence is readily available may impose a near impossible burden on the board. However, it has not been suggested that hearsay evidence should be resorted to in the total absence of any firsthand evidence. In the instant cases hearsay evidence was only resorted to to supplement the firsthand evidence and this is the usual practice. Accordingly where a prisoner desires to dispute the hearsay evidence and for this purpose to question the witness, and where there are insuperable or very grave difficulties in arranging for his attendance, the board should refuse to admit that evidence, or, if it has already come to their notice, should expressly dismiss it from their consideration.