R v Secretary of State for the Home Department, ex parte Benwell [1984] 3 All ER 854
HODGSON J: The applicant was between 1968 and 1984 a prison officer. He served at Dartmoor prison. On 17 June 1982 he was charged with disobedience to orders contrary to para 1(iii) of the Code of Discipline for Prison Officers. Lengthy disciplinary proceedings followed. In February 1983 the Secretary of State informed the applicant through the prison governor that he proposed to dismiss him from the service. The applicant exercised his further rights of appeal. In November he was informed that the Secretary of State had decided to implement the decision to dismiss him and he was told that his last day of service would be 31 December 1983. The applicant comes now to this court seeking judicial review of that decision of the Secretary of State. He asks for a declaration that the decision was ultra vires and for certiorari backed by mandamus to quash the decision.....
On 17 June 1982 the applicant was charged with disobedience to orders contrary to para 1(iii) of the Code of Discipline. Thereafter the lengthy procedures laid down by the code have been meticulously followed and no complaint is made about that. On 28 July the governor conducted a disciplinary hearing. The charge was:
"Disobedience to orders, that is to say if he without good and sufficient cause fails to carry out any lawful order, whether in writing or not. Particulars of alleged offence including time, date and place: Failed to report to the Regional Director's office at Bristol at 1100 hours on Thursday 17 June 1982 when told to do so on a number of occasions by the Deputy Governor......
[Having considered the merits, Hodgson J concluded that the Home Seretary's decision to issue a 'severe reprimand' to Benwell for breach of the Code was clearly unlawful]....
I now come to the question whether this court can do anything to remedy this injustice. Until a few days ago I should have found my own judgment in R v East Berkshire Area Health Authority, ex p Walsh (1983) Times, 15 November as persuasive as Sir John Donaldson MR would have found his own decision in Sanders v Ernest A Neale Ltd [1974] 3 All ER 327, when President of the National Industrial Relations Court but that assistance is no longer available to me and I must now look to the decision of the Court of Appeal in R v East Berkshire Area Health Authority, ex p Walsh.
The question whether the applicant's complaints in this case give rise to any right to judicial review is as I have indicated, of great general importance. The reason is this: because of his status of constable, a prison officer cannot resort to the industrial tribunals under the Employment Protection (Consolidation) Act 1978 (see Home Office v Robinson [1982] ICR 31.) Save to the extent that Parliament has by statute provided a Crown servant with some special entitlement, he is dismissible at pleasure and has no private law remedy. It follows that, unless a prison officer can seek leave to move for judicial review, he is without remedy if he is unlawfully dismissed (unless as counsel for the applicant point out in certain circumstances the officer is black or a woman). But these disadvantages go only, it seems, to the question whether this court should exercise its discretion to grant relief. They do not directly affect the jurisdiction point: see Sir John Donaldson MR in R v East Berkshire Health Authority, ex p Walsh. So the position is that, unlike Mr Walsh (who can now start proceedings by writ with all the procedural advantages he thereby gains) the applicant, if he is turned away empty-handed from this court, has nowhere else to go in this country.
At first sight, at any rate, the position of a nurse and a prison officer have much in common. The code of discipline for prison officers which governs the discipline of prison officers and provides sanctions for officers against prison discipline derive their authority from the statute in much the same way as the disciplinary procedures relating to nurses. The Prison Act 1952 provides in s 47(1):
The Secretary of State may make rules for the regulation and management of prisons, remand centres, detention centres and youth custody centres respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein....
Under the power granted by s 47(1) the Home Secretary made the Prison Rules 1964, SI 1964/388. Part II deals with officers of prisons. Rules 77 to 83 deal with matters of discipline of prison officers. Rule 84 reads:
The Secretary of State may approve a code of discipline to have effect in relation to officers, or such classes of officers as it may specify, setting out the offences against discipline, the awards which may be made in respect of them and the procedure for dealing with charges"....
There are, however, differences between nurses and prison officers. Nurses enter into a contract of employment with health authorities whereas prison officers are appointed by the Home Secretary (see Prison Act 1952, s 4(1) and Prison Commissioners Dissolution Order 1963, art 3(2), Sch 1). It seems to me that this may point the way I should go. Second, as I have said, nurses have remedies in civil law which are not available to prison officers and, although this fact only goes directly to discretion, it may be some indication that Parliament intended questions of the exercise of the Home Secretary's powers and duties under the code to be in the public sector. It was under and purportedly in compliance with that code of discipline that the department issued the applicant with notice of its intention to dismiss him and the Home Secretary decided to implement that decision. The question is whether that is a sufficient statutory under-pinning to inject the element of public law into this application (see per Sir John Donaldson MR in Ex p Walsh).
Counsel for the applicant submits that a distinction between this case and Ex p Walsh can be found in the fact that in Ex p Walsh the conditions of employment were contractual conditions incorporated by collective bargaining and approved by a minister, whereas this case is not concerned with contractual rights but only with the public law duty of the Home Secretary to follow the code of discipline and apply it. Counsel for the Secretary of State, with an explicit lack of enthusiasm, contends the contrary. He says that there are three findings I could make. The first that what he calls the 'entirety of the matter' is justiciable; the second, that the procedures are justiciable, but not the substantive decision to dismiss; the last, that neither the procedures nor the substantive decision are justiciable. With respect, I think that counsel for the Secretary of State in his submissions is confusing two things: the power of the Home Secretary to dismiss a prison officer for other than disciplinary reasons...; and the power of the Home Secretary to implement a disciplinary award of dismissal. That second power would be equally subject (or not subject) to review by this court if the award was one of severe reprimand or reduction in rank.
It seems to me that the reason why the Court of Appeal came to the conclusion it did in Ex p Walsh was that the disciplinary procedures in...the Whitley council agreement were incorporated into the contract of service and that it was this incorporation which deprived the procedures and compliance with them of any possible public law character:....
Clearly, the Court of Appeal in Ex p Walsh did not consider the purported dismissal on disciplinary grounds of Mr Walsh to be the performance of any duty imposed on the authority as part of the statutory terms under which it exercised its powers.
In this case, however, it is my opinion that in making a disciplinary award of dismissal, the Home Office.... was performing the duties imposed on it as part of the statutory terms under which it exercises its power. I conclude therefore that this court in the exercise of its supervisory jurisdiction can come to the aid of the applicant in this case and I am glad that it can. I can only hope that my gladness is longer lived than the gladness I was foolhardy enough to express in Ex p Walsh.
