The most important aspect of Tom’s case is the fact that no reasons were given for the search.

Public Law and the Administration

1. The most important aspect of Tom’s case is the fact that no reasons were given for the search. It must be addressed whether the actions taken by the prison authorities, namely the tampering with of correspondence with his solicitor and the confiscation of his property would be held as lawful in a court.

One perspective from which Tom could approach the issue is that which Craig identifies as the misuse of power argument. The House of Lords in Padfield said that if no reasons were given for a decision, as Tom has experienced, then it would be possible for the court to assume that none existed. The judgement in Padfield does not require all of the reason for a decision to be forthcoming, just one that supports the bodies policy or purpose of the legislation. Under this, the prison authorities would be obliged to justify their actions as “necessary to maintain order amongst the prisoners”.

As stated by Craig

“It is a well known and oft repeated proposition that there is no general common law duty to furnish the reasons for a decision”

In R v Higher Education Funding Council ex parte Institute of Dental Surgery it was stressed that the requirement to give reasons will depend upon the circumstances of each individual case. Reasons should be given if fairness demands it, or if there is a serious issue at stake, such as a person’s liberty.

Craig goes on to clarify the modern position, by remarking

“It will be seen that the courts have moved closer to the imposition of such a general obligation, even though they continue to invoke the principle that no such duty exists”

At the time these comments were made, cases such as Wilson, Doody, and Cunningham were recent. The Court of Appeal in Cunningham acknowledged that if the decision were in any manner judicial, natural justice would demand that an outline of reasons should be given for the decision. Tom would need his experience to be categorised as quasi-judicial for this to apply to his case. The prison authority has acted in an intrusive manner and the removal of Tom’s property is the type of action that is often only permitted by public bodies, particularly the police, with authorisation from the relevant court. From this angle Tom has a reasonable chance of success, although much would depend on the courts interpretation of what constitutes judicial like decisions.

It is possible that the Prison Act 2005 would not be found to confer such wide ranging powers as the prison authorities believed, and that the rules they imposed would be ultra vires, an event comparable to Leech. Restricting a prisoners right to private communication with his solicitor, which was done under rule 33 (3) of the Prison Rules 1964, was found to impede an individuals right of access to courts. This ruling as in accordance with Anderson, in which Goff LJ commented

“…an inmates right of access to a solicitor for the purposes of obtaining advice and assistance…should be unimpeded.”

Under the authority of Daly, there is nothing ultra vires regarding the search of Tom’s cell, as it is within statutory powers and it would be difficult to define it as being so extreme to be substantively unreasonable in the Wednesbury sense. The prison authority has the right to look at, although not to read, the correspondence between Tom and his solicitor.

Tom has a number of grounds on which he could apply for judicial review. These include the failure to follow principles of natural justice, that the prison governors’ actions are irrational.

2. It would at first appear that the authorities have acted within their powers that were delegated to them by the Prison Act 2005. However, there is no evidence that is apparent, due to the lack of reasons, of any suspicion that the visits been for unlawful purposes. This is required in order for them to be banned. The principle of unreasonableness, as established in the Wednesbury case may apply, and this must be considered alongside the developing area of proportionality. This will help determine whether either area may potentially give Jane grounds for judicial review, if no other area such as a prison ombudsman exists to which she may complain.

The case of Murray would arguably be of relevance to Jane. Murray stated that if the case involves a highly regarded principle, which in Jane’s case would be the right to respect for private and family life, as specified in Article 8 of the ECHR, she may be able to argue that the particular circumstances require the advancement of adequate reasons. However, this may lessen when Lonhrois considered. The principle that emerged was that if no reasons for a decision were given, and the body was not obliged to provide any, the lack of them would not result in the decision ...

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The next area Jane should regard is unreasonableness. Courts have attempted to restrain from making decisions based on merits, and only review procedural matters. From Lord Greene’s two tests of reasonableness, Jane can disregard one, the substantive test that requires a decision to be wholly irrational. This is because the reason was not

“So unreasonable that no reasonable body could each such a decision”

The ‘umbrella’ sense of Wednesbury unreasonableness is much broader. One angle, which Jane could use, is that the decision to ban visits was made without taking into account relevant considerations. The authorities found nothing during the search to justify a ‘reasonable’ suspicion that any unlawful acts were occurring.

Since the Human Rights Act 1998 (HRA) came into effect the use of proportionality, previously limited to few cases, has increased significantly. The basic idea of proportionality in regard to rights is that

“interference should be proportionate: the extent of the interference covers only the purpose that justifies it, and does not go beyond it”

There had been a gradual acceptance of proportionality prior to the HRA, notably by Lord Slynn in Alconbury, who commented

“I consider that even without reference to the 98 act the time has come to recognise that this principle is part of English administrative law”

The use of proportionality would require a balance to be reached by the courts, between the aim of the Prison Act ‘to maintain order amongst the prisoners’, and the fundamental rights of Jane and her family. In comparison to Jane’s predicament, Wainwright must be considered. In this case there was found to be no breach of Article 8. However, despite Wainwright’s claims to the contrary proper procedures were found to have been followed. If this did not occur for Jane her case would have potential for success for disproportionate treatment, for the banning of her visits, as well as the strip search.

3. The permission of legal representation may be governed by statute, and if so the courts will abide by such statutory terms, although they are a rare occurrence. As recently as 1975, the principle of natural justice was found not to apply to hearings before boards of visitors. This was over-ruled in St Germain when the principle was found to apply to hearings in front of governors, and also to boards of visitors.

John and James do not have an automatic right to legal representation, which is one factor St Germain upheld from Fraser v Mudge. In that case, Denning stated

“We ought not to create a precedent such as to suggest that an individual is entitled to legal representation.”

This reinforces the principle from earlier case law such as Enderby Town FC and Pett.

The courts have however emphasised that tribunals have the discretion to allow legal representation. A tribunal is master of its own procedure, and it is from this power that the decision to allow or disallow legal representation is allowed. The distinction between the right to representation and discretion to allow it was first recognised in Enderby Town. Denning, speaking of tribunals goes on

“...if they, in the proper exercise of their discretion, decline to allow legal representation, the courts will not interfere.”

It is the ‘proper exercise of their discretion’ which is of most relevance to John and James. They must enquire into the procedures followed in reaching the decision, or if there is a blanket policy in place that simply bans representation in such circumstances.

Webster identified the factors that must be taken into account by a board of visitors in exercising their discretion regarding legal representation in the group of cases, which included Tarrant. From the six factors specified a number could potentially apply to John and James. The seriousness of the charge and its possible penalty are a definite area that John and James need to ensure was taken into account. Although we are not informed of the penalties that could be enforced, it is safe to assume that they are serious. This is due to the nature of the charges, which are analogous to criminal ones. The liberty of the prisoners is therefore possibly at stake, as they could face lengthened sentences.

Two further, linked areas that Webster states must be considered in the use of discretion, is the capacity of John and James to present their own case, and whether any points of law are likely to arise. The high probability of the latter would make the former less probable. This would result in legal representation being necessary. The pair would also face ‘procedural difficulties, particularly in locating witnesses, if they are segregated from other prisoners whilst awaiting the hearing.

The effect of the HRA does not appear to benefit prisoners in their claims for representation during disciplinary hearings. This conclusion can be drawn from Carroll, in which case legal representation was not permitted, as breaches of prison rules were not found to be criminal proceedings, as specified in Article 6. Lord Woolf commented at p62

“…we find no reason to regard the proceeding as other than fair. The deputy controller was entitled to come to the conclusion that there was no need for legal representation”

if John and James were unsuccessful internally in their request for representation the most productive route to pursue would therefore be to approach the court. They could attempt to have the courts ensure that the prison authorities have used their discretion in an appropriate manner. If the prison governors were found not to have kept within procedural guidelines, the matter would have to be approached anew.

4. In Tony's situation, established principles of tort law, their standing subsequent to the HRA, and the position of both within public law must be considered.

The general test used to determine whether there is liability from one party to another, first incorporates the duty of care, which means the claimant must be owed a duty from the defendant for them to act carefully, which gives rise to damages. The test used today is that emanating from Caparo v Dickman. There must be reasonable foreseeability of the event, proximity in time and space between the parties, and it must be fair and just to impose a duty. Taking each of these in turn, Tony’s case seems strong, particularly regarding the first two issues. The prisoner who slashed Tony’s face was known to be violent, so the act could therefore be said to be reasonably foreseeable, the proximity of the relationship between a prisoner and the prison authority is obviously undeniably close and indispensable. A prisoner must be able to reasonably assume a certain level of protection from other prisoners. The most difficult aspect of the Caparo test for Tony to fulfil is that of it being fair, just and reasonable to impose liability.

Policy considerations have in the past resulted in blanket immunities from certain tort actions being given to public bodies, as occurred in Hill and Osman v Ferguson. The general approach advocated by Lord Browne-Wilkinson in X v Bedfordshire was that it must first be considered whether the authority has acted within the powers granted to it by statute, in the matter that is being claimed against. If the decision of the body is found to be intra vires, the action must stop there, as

“the local authority cannot be liable in damages for doing that which parliament has authorised.”

However, if the conduct occurs as a result of an ultra vires decision, the Caparo criteria must then be applied. In Tony’s case it is unclear if the act of being left without adequate supervision would be ultra or intra vires. There is no information stating whether the level of required supervision is governed by statute, and it is likely that it is a matter left to the prison authorities discretion. It is inferable that the prisoners are not supposed to be left without adequate supervision, particularly violent ones, simply due to the very nature of prisons.

Another option for Tony to pursue would be to use the approach in Barrett v Enfield, ere the distinction between policy and operational matters was made. The decision in Barrett was said to be operational in nature, and therefore it was justiciable for the claimants’ case to proceed. This is an avenue worth exploring for Tony, as the decision to move staff to another part of the prison and leave the part Tony was in unsupervised would have been reactionary, and made quickly, which arguably would have made the matter operational. If this was determined as being the case, the criteria of it being fair and just to impose a duty can be fully considered.

It is unfortunate for Tony that the European Court of Human Rights reconsidered its ruling in Osman, in which they said blanket immunity for the police was in breach of Article 6 of the European Convention of Human Rights (ECHR). Article 6 states that everyone is entitled to a hearing by a tribunal. In Z v UK the court rectified its position, stating

“the court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law.”

The old case of Ellis with circumstances similar to Tony’s, rejected the claim of a prisoner, not due to immunity, but because the damage was not foreseeable as there was no previous record of violence from the prisoner. Tony has a good chance of being successful in a claim for damages, as the Caparo requirements appear to have been met.

Bibliography

Cases

Padfield v Minister of Agriculture, Fisheries and Food, [1968] A.C. 997

R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 W.L.R. 242

R v Ministry of Defence ex parte Murray [1998] C.O.D.134

R v Parole Board, ex parte Wilson [1992] Q.B. 740

R v Secretary of State for the Home Department, ex parte Doody [1994] 1 A.C. 531

R v Secretary of State for the Home Department, ex parte Cunningham [1991] 4 ALL E.R. 310

R v Secretary of State for the Home Department, ex parte Leech (no2) [1994] Q.B. 198

R v Secretary of State for the Home Department, ex parte Anderson [1984] Q.B. 778

R v Secretary of State for the Home Department, ex parte Daly [2001] U.K.H.L 26

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 K.B. 223

R v Secretary of State for Trade and Industry, ex parte Lonhro, [1989] 2 ALL E.R. 609

R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 ALL E.R. 687

R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 W.L.R. 1052

R v Secretary of State for the Environment, Transport and the Regions, ex parte Alconbury Developments Ltd [2001] U.K.H.L 23

Wainwright and Another v Home Office [2003] ALL E.R. 279

Maynard v Osmond [1977] Q.B. 240

Fraser v Mudge [1975] 1 W.L.R. 1132

R v Board of Visitors of Hull Prison, ex parte St Germain [1979] Q.B. 425

Enderby Town Football Club v Football Association Ltd [1971] Ch. 591

Pett v Greyhound Racing Association Ltd [1970] 1 Q.B. 67

R v Board of Visitors of H.M. Prison, ex parte Hone [1988] A.C. 379

R v Secretary of State for the Home Department ex parte Tarrant [1985] Q.B. 251

R (On the Application of Carroll) v Secretary of State for the Home Department [2002] 1 W.L.R. 545

Caparo Industries Plc v Dickman [1990] 2 A.C. 605

Hill v Chief Constable West Yorkshire [1989] A.C. 53

Osman v UK (2000) 29 E.H.R.R. 245

X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633

Barrett v Enfield London Borough Council [2001] 2 A.C. 550

Z v UK [2001] 2 F.L.R. 612

Ellis v Home Office [1953] 2 Q.B. 135

Journals

Craig, P.P. ‘The Common Law, Reasons and administrative Justice’ [1994] The Cambridge Law Journal, 282

Books

Craig, P.P. Administrative Law, (Thomson, Sweet & Maxwell), 2003

Hoffman, D. Rowe, J. Human Rights in the UK; an introduction to the Human Rights Act 1998, (Pearson Education), 2003