swarb.co.uk - law index
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Prisons - From: 1990 To: 1990
This page lists 4 cases, and was prepared on 02 April 2018.
Regina v Parole Board, Ex parte Bradley; QBD 1990 - [1991] 1 WLR 134; [1990] COD 375; [1990] 3 All ER 828
Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office [1990] 3 WLR 465
1990
QBD
Ralph Gibson, Nolan J
Administrative, Prisons
A prisoner challenged the decision that he should be segregated under rule 43. Held: Ralph Gibson LJ said: "In this case Mr Sedley acknowledged that there could not be an unqualified obligation in all cases upon the governor to allow the right to be heard. There may be cases of urgency. We would add that there may be difficulty in disclosing the reasons, or part of them, if, for example, the intention to segregate is based upon information obtained as to threatened misconduct, such as violence against another prisoner. Giving detailed notice of the grounds might well indicate to the prisoner the source of the information and thereby create the risk of an immediate retaliation against the giver of the information. In this case the giving of notice to the applicant might have been regarded as giving rise to the risk of an immediate protest in breach of the rules by the applicant intended to cause others to join his protest. In another case a governor might reasonably claim that he could not sensibly disclose the reasons for his intended decision, or some part of those reasons, because of the need not to reveal either the source of the information or that certain facts are known to the prison department. Mr Sedley maintained that this was not such a case and, if the right to be heard could be allowed, the law should require that it be allowed.
We do not accept this submission. In our view, having due regard to the interests of the prisoner and of society at large, including the due administration of the prisoners, fairness does not require that a prisoner be given the right to be heard before a decision affecting him is made under rule 43." and "Good administration will often allow and cause a governor to provide such an opportunity to a prisoner but that, in our view, is for decision by the governor having regard to any policy instructions by the Secretary of State. There could be no unqualified obligation applicable in all cases for the reasons stated above. The rule, if it existed, would have to be stated in terms providing for the necessary qualifications. The requirements of the law, in prison administration, based upon natural justice, should, in our view, be both clear and simple. Any such rule would open many rule 43 decisions to question on the ground that the reasons given were deficient."
Prison Rules 1964 43
1 Citers
Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague Guardian, 05 June 1990; [1990] 3 All ER 687; [1990] 3 WLR 1210
5 Jun 1990
CA
Sir Nicolas Browne-Wilkinson V-C, Taylor and Nicholls LJJ
Prisons, Administrative
A decision to segregate a prisoner under rule 43 is to be made by the governor of the prison where he is held. Taylor LJ said: "Apart from the urgency of decisions under r 43, there may well be other public policy grounds for not giving reasons in advance to the prisoner so as to enable him to make representations. Giving reasons would often require unwise disclosure of information. Such disclosure could reveal to prisoners the extent of the governor's knowledge about their activities. It would reveal the source of such information, thereby putting informants at risk. It could cause an immediate escalation of trouble."
A clear distinction could be drawn between the procedural requirements in disciplinary proceedings and the use of rule 43: "In disciplinary proceedings which may result in punitive action, the full panoply of natural justice principles is appropriate and Parliament has provided that it should apply. Although the consequences of rule 43 are in some respects akin to those imposed as punishment, the object of the rule is not punitive. Indeed, where it is invoked at the prisoner's request it is specifically aimed at protecting him from illegal punishment at the hands of fellow prisoners. So, in the context of rule 43, although the governor and the regional director must act fairly and make reasoned decisions, the principles of natural justice are not invoked in the rules. Instead, alternative safeguards are provided to protect the prisoner's rights."
Taylor LJ went on to say: "No doubt in many cases the governor will be able, as here, to give reasons at the time of the decision or shortly after. But the same considerations of public policy as persuaded me . . to hold that reasons are not in law required as a matter of course before a decision to segregate may apply with equal force after the decision. Again, the guiding factors must be the subject-matter and the circumstances . . I would not be prepared to hold that in all cases a prisoner has a legal right to be given the reasons for his segregation."
Prison Rules 1964 43
1 Cites
1 Citers
E v Norway 11701/85; (1994) 17 EHRR 30; [1990] ECHR 17
29 Aug 1990
ECHR
Human Rights, Prisons, Damages
The applicant suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as result of which he was detained in mental hospitals. The effect of this sentence was to enable the Ministry of Justice to monitor his progress and to release or detain him when this would prove appropriate. It gave the ministry a wide discretion in deciding which of various possible security measures was to be imposed and for how long. The court observed that this system shared a number of features with the Belgian system in regard to recidivists and habitual offenders which was at issue in the Van Droogenbroeck case: "Under such systems the courts cannot at the time of their decisions do more than assess how the person concerned will develop in the future. The authorities, on the other hand, through and with the assistance of their officers, can monitor that development more closely and at frequent intervals." There remained a risk that time the link between the ministry's decision not to release or to re-detain and the initial judgment might be broken with the result that it would be transformed into a deprivation of liberty that was arbitrary.
1 Citers
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