Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An 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.’
The disciplinary decisions of prison Boards of Visitors could be distinguished from those of prison governors and were amenable to judicial review. In exceptional cases, where a disciplinary hearing may depend on the disputed factual evidence of a witness, natural justice itself may require that the employee should be be allowed to cross examine the witness.
Jeffrey Laing LJ said: ‘In our judgement, the statutory obligation to make the rules, and R49 (2) in particular, are merely declaratory on one of the basic rules of natural justice, namely that every party to the controversy has the right to a fair hearing. He must know what evidence has been given and what statements have been made effecting him; he then must be given a fair opportunity to correct or contradict them.’
the court in judicial review proceedings is neither concerned nor equipped to resolve issues of fact. The public authority’s evidence of the facts will be accepted.
Shaw LJ, Jeffrey Laing LJ
[1979] QB 425, [1979] 3 All ER 545, [1979] 1 WLR 1401
England and Wales
Cited by:
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Approved – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – Santamera v Express Cargo Forwarding (T/A IEC Ltd) EAT 26-Nov-2002
The claimant appealed against a decision that she had not been unfairly dismissed. She had been dismissed after complaints by a colleague, but had not been given the opportunity to examine him during the process.
Held: An employer was not duty . .
Cited – Al-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
Lists of cited by and citing cases may be incomplete.
Prisons, Judicial Review
Leading Case
Updated: 10 November 2021; Ref: scu.190126