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QUEEN and Director General of the Prison Service; Secretary of State for the Home Department ex-parte Prison Officers Association and 25 Others [2000] EWHC Admin 375 (26th July, 2000)
IN THE HIGH COURT OF JUSTICE Case No: CO/4934/99
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand London
WC2A 2LL
Wednesday, 26th July 2000
Before:
THE HON MR JUSTICE TOMLINSON
THE QUEEN
and
(1) Director General of the Prison Service
Respondents
(2) Secretary of State for the Home Department
-ex-parte-
Prison Officers Association
& 25 Others
Applicants
- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
Nigel Giffin (instructed by Lees Lloyd Whitley) for the Applicants
Philip Sales (instructed by the Treasury Solicitor) for the Respondents
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE TOMLINSON:
The second to twenty seventh applicants are prison officers, the first
applicant is their trade union. These officers, and one other officer who is
not a member of the Prison Officers' Association are all employed at HM Prison
Wormwood Scrubs. Allegations have been made by prisoners at Wormwood Scrubs
that officers there have engaged in unlawful conduct in the shape of unlawful
assaults upon inmates. The twenty seven officers against whom such allegations
were made were suspended from duty while a police investigation into these
allegations was conducted. They remain suspended from duty. All twenty seven
officers are now the subject of criminal prosecutions brought by the Crown
Prosecution Service. Each officer is accused of assault occasioning actual
bodily harm, contrary to Section 47 of the Offences Against The Person Act
1861. I was told that it is currently expected that there will be twelve
trials and that the first, involving I think four officers as Defendants, with
an estimated duration of two weeks, began on Monday 3rd July.
The question which underlies these proceedings concerns the funding of legal
representation for the officers at their trials. If they are acquitted they
might well be awarded their costs out of public funds, although the expense
would need to be met pending recovery. If they are convicted there will of
course be no such recovery. It might be thought that the officers would be
eligible for Legal Aid and I was told that applications were made. Apparently
offers of assistance were made by the Legal Aid authorities but on the basis
that the officers would be required to make a contribution towards the cost of
representation. The Prison Officers' Association as the officers' trade union
would, as I understand it, acknowledge an obligation to relieve their members
of the burden of individual contribution. This would in turn however affect
the level of contribution required by the Legal Aid authorities as the ability
of the officers to recover from their union is a matter which the Legal Aid
authorities must apparently take into account in assessing their resources.
The upshot is that none of the twenty six individual applicant officers is
legally aided.
The legal representation of the officers, or at any rate the twenty six with
whom I am immediately concerned, is currently being funded by the Prison
Officers' Association, to whom I shall refer hereafter as the "POA." As
matters stand therefore the POA bears both the burden of funding pending any
recovery from central funds and the risk that the costs will be irrecoverable
in consequence of conviction of any of their members. There is no suggestion
by the POA that those are burdens that they are unprepared to shoulder although
the overall costs if there is no recovery could apparently be the equivalent to
the income of the association for one month.
There is however one other potential source of assistance available to the
officers. Their contracts of employment contain provisions relating to the
granting of legal representation, or financial assistance in connection
therewith, including in criminal proceedings, at public expense. A discretion
whether to grant such assistance is reserved to the Crown. None of the twenty
six officers concerned in these proceedings has yet made an individual
application for assistance pursuant to those provisions and I infer that the
twenty seventh, non-union, officer has not done so either. However by letter
dated 9th September 1999 addressed to the Director General of the Prison
Service the POA on behalf of its twenty six members requested urgent
consideration of its request that the prison service should fund the cost of
the legal
representation of the officers. That letter reads as follows;
"We write on behalf of 26 members whose names appear on the
attached list. All 26 of these individuals were employed at Wormwood Scrubs
or are still employed there. They are currently suspended from duty and
facing criminal charges in relation to allegations made by various inmates.
All the charges which have been made against the individuals are that they
have committed actual bodily harm contrary to Section 47 Offences Against The
Person Act of 1861. As you will be aware all the alleged incidents took place
at Wormwood Scrubs when the individual officers were carrying out their normal
duties. Many of the incidents were reported to the management at the time
they occurred and internal investigations were carried out. As far as we are
aware in no instance was an officer found to have been guilty of any wrong
doing by the internal investigation. In some cases the prisoner was found to
have assaulted the officer and as a result the officer has been able to make
a successful claim under the Criminal Injuries Compensation Scheme.
Under the provision of the Civil Service Pay and Conditions of Service Code,
the Civil Service Management Code and the Prison Service Staff Handbook the
Prison Service has the discretion whether to provide legal representation or
payment of some or all of an officers legal expenses. In determining whether
or not to provide that assistance the Prison Service should bear in mind
whether the act in question was committed within the scope of the officers
employment and whether it is in the interest of the Department to grant
assistance.
As we have pointed out the allegations which have been made all relate to
incidents which occurred during the normal working day of these prison
officers. They vehemently deny that they have been involved in any wrong
doing. In some instances there is a denial that the incident ever occurred and
in others that the allegations relates to an occasions upon which an inmate was
being restrained using recognised control and restraint methods. Furthermore
it is clearly in the interests of the Department that a vigorous defence should
be mounted in respect of these false allegations. It is essential for the
officers to know that the Prison Service will stand behind them when they are
subjected to allegations by prisoners. All the more so must the Prison Service
be seen to stand behind the actions of its own officers who have been cleared
by an internal investigation.
As you are aware the proceedings have commenced and we would therefore be
obliged if you could give urgent consideration to our request that the Prison
Service should fund the cost of legal representation of all officers who are
involved in these criminal proceedings. Given the fact that the criminal
proceedings are well under way we would appreciate a response within the
course of the next 14 days."
I should perhaps explain that the Prison Service is an executive agency under
the umbrella of the Home Office. The prison officers' employer is of course
the Crown.
The Director General of the Prison Service, Mr Martin Narey, replied on 17th
September 1999 as follows;
"Thank you for your letter of 9 September in which you asked that
the Service should fund the cost of legal representation for the 26 staff at
Wormwood Scrubs who face criminal charges as a result of allegations made by
prisoners.
While I appreciate the financial pressure upon your organisation, I
do not believe it would be right for the Service to do this in these cases.
As you know it would be perceived publically (sic) as my defending allegedly
criminal behaviour.
Obviously, like all defendants, your members need support but this
must come either from their Trade Union or by normal application to the Legal
Aid Fund."
That letter led, perhaps not surprisingly, to the launch of these proceedings.
Matters might have taken a different course had there not been some delay in
the POA, through their solicitors, responding and had that response, when made,
been received by the Prison Service. Apparently it was not. At all events
before that confusion could be resolved the POA felt impelled by the relevant
time limits to launch the application which they did on 16th December 1999.
The relief sought was;
"(1) An order of certiorari to quash the aforesaid decision [i.e the
decision contained in the letter dated 17th September 1999]
(2) An order of mandamus requiring the First Respondent to
reconsider the request for funding.
(3) Alternatively, if it be held that the relevant rights of the
Second to Twenty-Seventh Applicants are exclusively contractual and may not
be asserted by way of judicial review:
(a) An order, pursuant to RSC Order 53 r.9(5), for the
continuation of the proceedings as proceedings brought under CPR Part 7;
(b) A declaration that the First Respondent's aforesaid decision
was reached unlawfully and in breach of the contracts between the Crown,
represented by the Second Respondent, and each of the Second to
Twenty-Seventh Applicants; and
(c) An injunction requiring the Second Respondent, by the First
Respondent as its agent or otherwise, to reconsider the request for
funding."
Matters did not however rest there. On Sunday 13th February 2000 there
appeared in the Observer newspaper published that day a report of an "exclusive
interview" given by Mr Narey to the newspaper's Home Affairs correspondent. Mr
Narey was quoted as saying, in the context of the criminal prosecution faced by
the 27 officers to whom I have referred, that in some parts of the prison,
i.e. Wormwood Scrubs there was a culture of violence and it had to be
eradicated. Mr Narey was further quoted as saying "The segregation unit [at
Wormwood Scrubs] was clearly an evil place."
On 23rd February 2000 Mr Gareth Hadley, the Prison Service Director of
Personnel, wrote to the POA's solicitors as follows;
"Further to my letter of 20 December 1999 your response of 21
December and your application for judicial review we have now reconsidered
the request contained in your letter dated 5 October (sent to us on 19
November). The
Director General considers that he should re-examine the claims for
funding of legal expenses made by your on behalf individual prison officers
who are the
subject of charges.
In re-examining each case, you should be aware that the policy of the Prison
Service is that we would not normally fund legal representation for staff
facing
criminal charges brought by the CPS or other prosecuting authorities (who
apply both the evidential test and the public interest test set out in the Code
for
Crown Prosecutors before bringing a prosecution) other than in exceptional
circumstances. We are not aware of any previous cases where we have funded
legal costs in these circumstances, but the Director General will approach
each case individually and will be assisted by any further representations
from you (or the individuals concerned) directed to their
individual circumstances. The Director General will, of course, take into
account in his re-examination the representations already made by you in the
correspondence and in the Form 86A. The Director General would be interested
to know if any of these staff have applied for legal aid and the results of
any such applications.
I shall be instructing the Treasury Solicitor to write to you formally to
ask
that the POA withdraw their application for judicial review in view of our
further consideration of these requests."
This letter did not satisfy the POA, essentially for two reasons. Firstly they
did not regard the announced policy of not funding "other than in exceptional
circumstances" as consistent with their members' contractual entitlement.
Secondly, whilst they noted that the Director General had undertaken to
reconsider the matter with an open mind, and whilst they emphasised that they
had great respect for Mr Narey "in much of what he does and says" they
nonetheless doubted in the light of the contents of his first letter on the
subject of 17th September 1999 combined with the strong views attributed to him
in the Observer article whether he could be relied upon to approach the matter
without bias.
The application for leave therefore went ahead on 10th March 2000 with these
two matters put in the forefront. Sullivan J granted permission to apply for
Judicial Review and to amend the grounds to include the two matters to which I
have just referred. A witness statement dated 20th April 2000 was filed by Mr
Hadley in which he accepted that the initial response of the Prison Service,
set out in the Director General's letter of 17th September 1999, had been
inappropriate. He explained in some detail the reasons which had informed the
adoption of the policy set out in his own letter of 23rd February 2000. He
also essayed an example of circumstances which might rank as exceptional.
Because of their importance I set out in full the relevant passages in his
witness statement;
12. I took steps to seek to identify whether the Prison Service
had adopted any
particular practice in the past. Only one previous request for funding for
legal representation could be identified from the Prison Service's files,
which had been refused without prior detailed consideration of any general
approach. I was informed by the Treasury Solicitor's Department that they
were aware of another case where a prison governor had approached them
directly in relation to a private prosecution against one of his officers.
The prison governor agreed to meet the costs of representation out of his own
budget, that is without reference to Prison Service Headquarters. Management
personnel at Prison Service Headquarters who had had responsibility for
dealing with matters relating to the conduct of prison officers for the last
nine or so years were asked whether they were aware of other requests for
funding, but they could recall none that had been granted in relation to
prosecutions by prosecuting authorities.
13. I considered that it would be important for the Service to adopt a
consistent approach to its consideration of each of the individual cases
comprised within the First Applicant's multiple request.
14. It did not appear to me that the contractual provision in the Code
referred to above, nor the Handbook, offered clear cut and definitive guidance
as to whether there should or should not be a grant of money for funding legal
representation in the particular circumstances of these cases. Given this, I
considered that, in dealing with the applications, the Prison Service should
seek to clarify the application of the general principles referred to in this
type of case. I wished to ensure that a consistent and defensible approach
could be adopted for the current set of 26 requests for funding (and , it
might be, in relation to the other prison officers from Wormwood Scrubs who
has been charged, but is not a member of the First Applicant union), and which
would also be capable of serving as a precedent for consideration of future
requests in an even handed manner.
15. It did not appear to me to be sensible for the Prison Service to conduct
its own investigation into whether the charges were or were not true. The
Prison Service is able to look at the merits of the application itself, but I
do not feel that is able to conduct its own detailed consideration of the
merits of the criminal case. Any such investigation seemed to me to risk
prejudging the criminal proceedings themselves. This was a particular risk in
the circumstances of this case, where a large number of prison officers are
all to be tried together, and the Prison Service might arrive at different
conclusions as to culpability in different cases.
16. In any event, I considered it unlikely that prison officers facing
criminal charges in court brought by the Crown Prosecution Service would be
willing to provide statements to a Prison Service investigator, which might be
used in evidence against them. And if some did, and others did not, it would
be difficult to treat the officers concerned in a consistent manner. Also,
any such investigation by the Prison Service would have had to be thorough, if
it were to be of any value at all, and it seemed realistic to suppose that
such an investigation by the Prison Service would tend to cut across, impede
and delay (as well as, in effect, duplicating) the determination of the
relevant issues relevant to guilt or innocence by the court. The Prison
Service had previously carried out internal investigations into some of these
cases, but accepted that the late r investigations carried out by the police
and CPS are bound to have been more thorough.
17. Finally, I considered that any attempt by the Prison Service to base a
decision on whether it had determined, after investigation for that purpose, a
prison officer to be guilty or innocent would be likely to be regarded by
prisoners and the public (to whom, ultimately, the Prison Service is
accountable) as improperly usurping the function of a court of law. I
considered that this would damage relations with serving prisoners and public
confidence in the Service, contrary to the interests of the Service.
18. I was aware that the Crown Prosecution Service has the benefit of
material from a police investigation in deciding whether to bring charges, and
that it applies tests of whether a prosecution is justified on the evidence
and is in the public interest before deciding to bring charges. At "GH4" I
exhibit a copy of the Crown Prosecution Services' Code for Crown Prosecutors,
which sets out in detail the threshold conditions which have to be satisfied
before a prosecution may be brought. In the light of the standards which the
Crown Prosecution Service has to apply, and in the light of its being able to
benefit from the police investigation, I considered that it was appropriate
for the Prison Service - when considering whether or not the funding of an
officer's defence of criminal proceedings using public funds is merited - to
attach considerable weight to the fact that the Crown Prosecution Service
considered it proper to bring and maintain charges against that officer.
19. By reason of the weight which it seemed appropriate to attach to this
factor, I therefore decided that a consistent, workable and publicly defensible
approach as to the merits of funding legal representation for a prison
officer's defence in the case of a prosecution brought by the Crown
Prosecution Service would be to fund such representation only in exceptional
cases. This seemed to me the position which best accorded with the interest
of the Prison Service in the circumstances, and to be a position which was
compatible with the Handbook. I informed the Director General of my decision
in this matter.
20. I therefore sent the letter dated 23 February 2000 (which I exhibit at
"GH5") to explain to the Applicants the approach which the Prison Service had
decided to adopt in considering how to deal with their requests, and so that
they could focus in any representations they chose to make on factors
indicating why their individual case should be treated as exceptional (namely
one in which the particular merits of funding their case would outweigh which
the Service was minded to attach to the decision of the Crown Prosecution
Service that the evidence against them and the public interest was such that
they should be prosecuted). I referred to this as the policy of the Prison
Service, because I considered that the Prison Service had now adopted a policy
to ensure a common and consistent approach to the many individual requests
which had been made in this case, and because I was conscious that the
approach in these cases would be treated by the Service and the First
Applicant as a relevant precedent for future cases where prosecutions may be
brought by Crown Prosecution Service.
21. I do not believe that it would be appropriate to attempt to provide a
definitive statement of circumstances which the Prison Service would regard as
exceptional. The Service is concerned to assess each individual's case on its
own merits. However, by way of example, one factor which might lead the
Service to treat a case as exceptional and as meriting funding of an officer's
defence to a public prosecution could be where (on the facts alleged against
him or her) a member of staff carried out an act in line with Service rules or
procedures, such that it can be said that in substance it is the Service rule
or procedure that is being challenged as unlawful and that as a result a
prisoner had been assaulted when a prison officer had done no more than
properly apply those procedures might well be treated as exceptional, for the
purposes of the funding policy. Effectively, the Prison service itself would
be under challenge.
22. I mention this example because it is possible that some of the Applicants
maybe in a position to seek to contend that this is the nature of the case
against them:see the First Applicant's letter dated 9 September 1999, third
paragraph. Since the Applicants have not made individual representations to
the Prison Service, it cannot at present be known whether funding of their
defences would be merited on this basis.
This last example elicited a response from the POA in the shape of a witness
statement from Mark Freeman, now and for the last six months the Assistant
Secretary of the POA who had previously for two years had responsibility for
cases in which members sought legal assistance from the union and who before
that had served as a prison officer both in the field and at the Prison Service
College at Wakefield. The relevant parts of his witness statement read;
2. "I have read the witness statement of Gareth Hadley. The main purpose of
this witness statement is to comment upon what Mr Hadley says in paragraphs 21
and 22 of his statement, when he seeks to give an example of a case which
might merit funding on an "exceptional circumstances" test. He postulates a
case in which it was alleged that a prison officer had committed a criminal
assault even though he had admittedly done no more than apply Prison Service
procedures such as those set out in the Control and Restraint Manual, so that
in substance it was the procedure itself which was challenged as unlawful.
3. I have never encountered such a case, and I think it highly unlikely that
a criminal prosecution would ever take place which answered that
description. There are certainly cases in which officers contend that any
force which they used in dealing with a prisoner did not go beyond a proper
application of the Manual, but in such cases the prisoner's complaint is
invariably that as a matter of fact the officer used force which was excessive
or gratuitous, and so was not acting in accordance with the Manual. My
understanding is that a number of the present prosecutions fall into that
category, I further understand that, in the view of the POA's solicitor, it is
almost inconceivable that the Crown Prosecution Service would consider it in
the public interest to prosecute an individual prison officer who was
acknowledged to have applied official Prison Service procedures correctly,
even in the unlikely event that those procedures were judged to be so seriously
and obviously defective that their proper application would entail a breach of
the criminal law.
4. I have discussed this point with colleagues who share my view that a
prosecution brought by the CPS in such circumstances would be an unprecedented
step, and does not represent a realistic possibility.
5. This tends to confirm that the reality of the approach presently being
taken by the Prison Service is that it will never fund the defence of a
prosecution brought by the CPS."
The final development in this shifting scene came the day before the matter
came on for hearing before me in the shape of a letter from the Treasury
Solicitor to the POA's solicitors dated 4th July which reads as follows;
"I write in advance of the hearing of your clients' application for judicial
review on 5 July 2000.
One of the concerns expressed by your clients is, of course, as to the alleged
bias of the Director General of the Prison service. I understand this to be
because of the original decision letter which applied the wrong test and
statements made by the Director General reported in the Observer. My clients
remain firmly of the view that there would be no question or danger of bias
were the Director General to take the decisions in your clients' cases. My
clients do not believe that it could be productive, however, to expend
unnecessary time and cost arguing about the issue at the hearing tomorrow. My
clients intend, therefore, that the decisions will be taken by the Director of
Personnel, Gareth Hadley, rather than by the Director General. I trust that
you will find this satisfactory."
The POA did not find this satisfactory. Mr Giffin on their behalf submitted
that if the Court formed the view that the objection to Mr Narey considering
the individual applications was well-founded then there must equally be a real
risk of unconscious bias in Mr Hadley who was his subordinate, who knew his
views and must have discussed the matter with him and who was himself the
immediate author of the policy under attack. Mr Giffin's submission on this
point was essentially that the Prison Service had disabled itself from
considering the matter and that in the upshot either a wholly independent
person such as someone of appropriate standing from the Prison Service of
Scotland or Northern Ireland should be deputed to exercise the discretion on
its behalf or, if that was for any reason impossible or inappropriate, then the
Prison Service must simply grant funding in any case that being the course most
favourable to the applicants.
Finally I should record that both sides agreed that it would be sensible for
the POA to defer submission of individual applications on behalf of their
members, and thus for the Prison Service to defer consideration of them, until
the outcome of this application was known.
After this lengthy introduction I must now set out the contractual provisions
out of which this issue arises. They are to be found in the Civil Service Pay
and Condition Service Code, hereinafter "The Code", which so far as material
provides ;
"9680 A UK civil servant, industrial or non-industrial, serving at home or
abroad who is involved in legal proceedings may be granted legal
representation or some or all of his or her legal costs at public expense,
according to the principles set out in this section. In determining whether or
not a civil servant should be allowed financial assistance or legal
representation, departments will consider in consultation with their legal
advisers:
a. (i) if the act in question was committed within the scope of his or
her
employment, and
(ii) if it is in the interests of the department to grant assistance;
or b. If the act gives rise to a civil liability to which paragraph 9698
applies.
9697 If it is claimed that a servant of the Crown has in the course of his or
her employment done something which gives rise to an action for damages, in
practice it is usual for the Crown to be sued inn the name of the appropriate
department or in the name of the Attorney-General. But occasionally the
civil servant (eg the driver of a Government vehicle involved in an accident)
is also joined as defendant. In such a case, unless it is considered that the
civil servant was acting outside the scope of his or her employment, the
solicitor acting for the Crown will also act for him or her and the legal
costs and any damages awarded will be borne out of public funds, provided the
civil servant gives written instructions to the solicitor in the terms
required by the solicitor. The same applies in the rare case in which a civil
servant only is sued in respect of the performance of his or her official
duty. If the civil servant is considered to have been acting outside the
scope of his or her duty so that the Crown has no legal representation, and
the Crown will not accept responsibility for his or her damages. If he or
she contests the departments view, arrangements will be made to resolve the
dispute through the Courts or if this is impracticable, by arbitration.
9724 A civil servant who commits a road traffic offence in the course of his
employment may be provided with representation or assistance if:
a. The criminal proceedings arise out of a fault in the maintenance or
equipment of an official vehicle which it is the responsibility of the
department concerned adequately to maintain and equip for use on the road;
or b. The department has a substantial financial interest in the outcome
of subsequent proceedings connected with the accident that caused the criminal
proceedings (eg if it is expected that a civil action for damages will be
brought against the department and the department will accept liability for
the amount of any damages awarded against it or against the defendant if the
defendant is made a party to those proceedings);
or c. The department is satisfied that the circumstances are such that it
ought to accept responsibility for providing representation at public expense.
Representation or assistance will not usually be given if the civil servant is
given legal aid.
9730 If other criminal proceedings are instituted or have been completed
against a civil servant for an act or default alleged to have occurred within
the scope of his employment, departments will consider the case in
consultation with their legal advisers before accepting responsibility for the
defence or deciding whether to contribute to the costs of the defence."
On appointment prison officers receive a letter of which an example before me
was said to be typical. That provides;
"The attached schedule gives a summary of your main conditions of service as
they apply at present. The summary, together with this letter of appointment,
is issued in accordance with the requirements of sections 1-7 of the
Employment rights Act 1996. Any significant changes will be notified by means
of Notices to Staff and Prison Service Instructions."
The "attached schedule" provides, in its opening paragraph;
"SUMMARY OF PRINCIPAL TERMS AND CONDITIONS OF APPOINTMENT
The following paragraphs summarise or refer to your main terms and
conditions of service as they apply at present. This summary and appointment
letter are issued in accordance with the requirements of sections 1-7 of the
Employment rights Act 1996. Details of your conditions of service are given
in the Prison Service Staff Handbook, the Civil Service Pay and Conditions of
Service Code, the Civil Service Management Code and Notices to staff, Prison
Service Instructions and Order, E Mail messages etc. Which also notify you of
any changes. You should understand, however, that because of the
constitutional position of the Crown its employees hold their appointments at
the pleasure of the Crown"
The Handbook provides, so far as relevant;
"1.4 Prison Service staff are civil servants employed in the Home Office on
Civil Service terms and conditions which may be varied. The Director General
of the Prison Service will consult staff and trade unions on matters affecting
pay and conditions of service and , as necessary, negotiate changes. This
Handbook was produced after consultation with the trade union, who will
be
similarly consulted about any amendments.
1.6 This Handbook sets out what staff should expect from managers and what
the Prison Service expects from staff in return. The Handbook provides
guidance to managers on how they should use any discretion given to them in
putting the terms and conditions into practice (see paragraphs 1.9-1.10
below)
Staff involved in legal proceedings as a result of their duty
31.4 If legal proceedings are instituted against you, you may be eligible to
legal representations or assistance at public expense. The circumstances in
which you may be eligible are set below:
criminal proceedings - if criminal proceedings are instituted against
you for an act of default alleged to have been committed when you were within
the scope of your employment, the Prison Service will consider, on the merits
of the case, whether to accept responsibility for your defence;
civil actions - if you are sued for an alleged tort (i.e wrongful act
or omission), where the Prison Service is satisfied that the act was properly
performed within the scope of your employment, you may be allowed legal
representation."
It was common ground that the Handbook is of no contractual effect. It was
however contended by Mr Giffin for the applicants that the Handbook is a source
of legitimate expectation as to the manner in which the contractual discretion
would be exercised. Furthermore, he contended that the Handbook gave rise to
the legitimate expectation that, insofar as there existed no policy as to the
manner in which the discretion would be exercised, none would be adopted, i.e
the status quo would not be changed, without consultation with the trade union.
The present proceedings although brought by way of Judicial Review, without
objection, in fact raise issues of both public and private law.
Mr Sales for the respondents submits that the rights of the individual officer
applicants in fact derive from contract alone and that there is no scope for
public law principles of legitimate expectation. As to the POA, it is not a
party to the relevant contracts, nor is it an addressee of the Handbook and it
cannot in any event seek to derive benefit from any alleged legitimate
expectation.
Mr Giffin contended that the case fell within the third of the three categories
discussed by Woolf L.J in his judgment in McClaren v Home Office
[1990] ICR 824 at 836 - 837 and that the individual officer applicants were
adversely affected by the Director General's decision of general application as
to the manner in which the discretion would be exercised. He pointed out that
Woolf L.J instanced the GCHQ case, Council of Civil Service Unions v
Minister for the Civil Service, [1985] 1AC 374 as an example of just
such a case where the employees at GCHQ had no private law legal right to prior
consultation with their union before the making of an important change in their
conditions of service, but it was nonetheless recognised that they would,
apart from considerations of national security, have had a legitimate
expectation that such consultation would take place.
Mr Sales for his part submitted that Woolf L.J's third category was confined to
cases where the exercise of the prerogative or a statutory power outside the
framework of the contract affected individual contractual rights. If it were
otherwise, contended Mr Sales, Woolf L.J's first category of cases in which an
employee of a public body is normally in exactly the same situation as other
employees would be severely undermined. Mr Sales also submitted that in any
event since the present question had apparently never before arisen no
applicant could be said to have placed justified reliance upon the Handbook as
to the manner in which the discretion would be exercised, and in this regard he
relied upon observations of the Court of Appeal in the course of its judgment
in R v North and East Devon Health Authority, ex p.
Coughlan [2000] 2 WLR 622 at pages 647 and 654.
In the present case the Director General or rather Mr Hadley in enunciating his
policy was not in my judgment purporting to exercise any power to alter or even
to affect the contractual rights of employees-rather he was setting out an
approach to the exercise of his contractual discretion which, he contended,
would be entirely consistent with the ambit of the discretion reserved to him.
If his approach is non-contractual that can only be because the contract, on
its true construction, does not admit of that approach. The present case seems
to me very different from the GCHQ case. The question is simply whether, under
the contract, the Director General is entitled to proceed in the manner which
he has proposed. He is not seeking to exercise any power outside the four
corners of the contract, nor is he seeking to deprive the officers of any
existing contractual entitlement. On the contrary the Director General is
purporting to give effect to the officers' contractual entitlement. The
officers say, and can only say, that under the contract the Director General is
not entitled to do that which he proposes to do. That, as it seems to me,
must depend upon the true construction of the contract and if the Handbook is
of no contractual effect, as it is common ground it is not, then I do not see
how it can be prayed in aid in order to give to the words of the contract a
meaning which they do not properly bear. It was suggested that if the contract
is ambiguous it might be possible to have resort to the Handbook as part of the
factual matrix in the context of which it should be construed. That would in
my judgment be a potentially dangerous and possibly impermissible approach if
it is suggested that the Handbook says something which is different from what
is said in the contract, but since in my judgment the contract is not ambiguous
this problem does not arise.
The officers also say of course that the contract itself enunciates no policy
as to the manner in which the discretion will be exercised and that the
Handbook is indicative, and therefore productive of a legitimate expectation,
either that there will be no policy or that if there is to be one, it will only
be introduced after consultation. Again this submission is, in my judgment,
whilst exceptionally attractively presented, nonetheless wide of the mark. If
the application of a policy in the process of the exercise of a contractual
discretion brings about a result inconsistent with the contractual terms then
the result is itself uncontractual and the decision maker can be compelled, in
one manner or another, to give effect to the contract-either by specific
performance or injunction or by an award of damages which will put the
aggrieved party in the position in which he would have been had the contract
been observed. In my judgment therefore the officers do not need the Handbook
in order to ensure that they are accorded their contractual rights. Insofar as
they seek to rely on the Handbook to give to the words of the contract a
meaning other than that which they naturally bear, that is impermissible.
I would however just add this. Mr Giffin accepted that consideration "on the
merits of the case" as spoken to by the Handbook must embrace wider
considerations than simply the strengths and weaknesses of any individual
prosecution and, in particular, that it would embrace consideration whether, on
the facts of any given case, it is in the interests of the department to grant
assistance, the particular factor to which reference is made in Paragraph 9680
(a) (ii) of the Code. That being the case, I do not consider that the
Handbook adds to or even supplements the Code, except perhaps in the negative
sense that it does not enunciate a policy and might therefore lead the reader
to think that if none is set out there, the most appropriate place in which to
find it, then none exists. However for the reasons I have already given that
point adds nothing since if a policy is adopted the results of its application
must be capable of being justified in terms of the contract. So the question
again resolves itself to whether the policy is inconsistent with the terms of
the contract.
Mr Giffin was somewhat ambivalent on the question whether it is permissible for
the Director General to have a policy. His submission by reference to the
Handbook was that it was not, or at the very least that the Director General
could not adopt a policy in February of this year and then seek to apply it to
claims, or requests for assistance, first intimated in September of last year.
On the other hand it was implicit in Mr Giffin's submissions that it would be
perfectly legitimate for the Director General to adopt a policy which amounted
to a presumption that there should be funding, subject to rebuttal in
exceptional circumstances. In the end, and once the Handbook is removed as a
source of legitimate expectation, I am not sure that there was really much
between Mr Sales and Mr Giffin on this point. The real question is whether the
policy is inconsistent with the terms in which the discretion is conferred-or
perhaps for the reasons I have already given more accurately whether it will
produce results which are uncontractual.
I was naturally referred to cases in which it has been discussed, in a public
law context, whether it is legitimate for a decision maker to adopt a policy
which provides that in order for any given application to succeed exceptional
circumstances or compelling reason must be shown because of the weight which
will ordinarily be given to certain identified factors-cf In ReFindlay
1985 AC 318 per Lord Scarman at page 336. Perhaps the most pithy statement
of principle is to be found in the following passage from the speech of Lord
Reid in British Oxygen Co, Ltd. v Minister of Technology
[1971] AC 610 at 625 in which, after noting with approval a passage from the
judgement of Bankes L.J in R v The Port of London Authority ex
parte Kynoch Ltd [1919] 1KB 176 he remarked;
"The general rule is that anyone who has to exercise a statutory discretion
must not "shut his ears to an application.""
Lord Reid went on to encapsulate the proper approach as being that the
authority must be willing to listen to anyone with something new to say.
These cases are in my judgment helpful by way of analogy when approaching the
question of contractual construction which I have to resolve. I see no reason
why the approach should not in general be the same. Just as one looks to the
statute or other instrument conferring a public law discretion and enquires
whether the policy is consistent with the terms in which the discretion has
been reserved to the decision maker, so here in my judgment one asks whether
the policy is consistent with the terms of the contract. If the discretion is
expressed in an open-textured and non-specific manner, a policy which precludes
consideration of an application unless the applicant can identify certain
specific factors as being present in his application is likely to be unlawful
whether the source of the discretion is statutory or contractual. The question
to my mind is whether, to borrow Lord Reid's phrase, the Director General has
shut his ears to applications save those displaying certain identified
features. The case would be a fortiori if as a result of the weight to be
given to the factors identified by Mr Hadley in his witness statement the
category of "exceptional circumstances" is in fact devoid of all content
because one cannot sensibly think of a case which would qualify.
The more I have thought about this question, the more difficult I have found it
to formulate in my own mind the criteria which should inform the exercise of
the discretion contained in the Code. Fortunately that is not my task since
the discretion is not one given to the Court but reflection upon the manner in
which this discretion should properly be exercised has served to convince me
that the Director General's proposed approach as enunciated in Mr Hadley's
letter of 23rd February 2000 and his witness statement of 20th April 2000 is in
fact carefully considered, rational and, crucially, entirely consistent with
the terms of the contract.
The letter of 23rd February makes it clear that the Director General will
re-examine each case, and that he will approach each case individually with an
open mind. I leave out of account for the moment the question of bias. The
Director General will be assisted by representations from the officers or from
their association directed to their individual circumstances. Whilst
indicating that the general approach will be to fund in cases where the CPS has
decided to prosecute, the letter makes clear that applications will nonetheless
be entertained and considered on their merits even in such cases. Mr Hadley
in his witness statement at paragraph 20 makes it clear that the purpose of so
doing will be to consider whether in any given case there might exist factors
specific to the individual or peculiar to the circumstances of his case which
would outweigh the weight which the Prison Service is minded to attach to the
decision of the CPS that the evidence against an officer and the public
interest is such that he or she should be prosecuted.
Nor can I regard it as contrary to the terms of the contract, or if it matters
or is different, as irrational, for the Director General to afford considerable
but not necessarily decisive weight to the decision of the CPS reached after
application of the evidential and public interest tests enshrined within its
own Code for Crown Prosecutors. The central principle in the contract is that
assistance may, not must, be granted if it is in the interests of the
department so to do. In my judgment the approach which the Director General
proposes to adopt is entirely consistent with that provision in that it is an
entirely rational approach to the question whether it is in the interests of
the department to fund in a given case to give considerable, but not decisive
weight to the CPS decision to prosecute. The Director General must be alive to
the fact that in any given case it might be possible to show, perhaps in the
light of a particularly thorough or compelling internal enquiry, that the CPS
decision was aberrant or that notwithstanding an apparently unimpeachable CPS
decision there nonetheless exist other factors, peculiar to the officer or the
circumstances of his case, which nonetheless render it in the interests of the
department to grant assistance. As I read the letter of 23rd February 2000 and
Mr Hadley's witness statement that is precisely how the Director General
proposes to approach the matter.
If I had thought that there were no circumstances foreseeably likely to arise
which could be categorised as exceptional in terms of Mr Hadley's letter and
witness statement I would have concluded that the Director General had in fact
rendered the discretion devoid of content and that that would be uncontractual.
However I am satisfied that that is not the case. A private prosecution would
not necessarily attract funding but it would plainly be a case which the
Director General would not approach with any presumption such as that which he
proposes to apply to a CPS prosecution. I am not sure that the example given
by Mr Hadley in paragraph 21 of his witness statement is necessarily
particularly compelling because in most such cases the allegation would
inevitably be that the officer used more force than was in all the
circumstances reasonably required, the latter being the standard likely to be
enjoined by any applicable Control and Restraint procedures. However an
example of what Mr Hadley had in mind might be a case in which the Control and
Restraint Manual prescribes the use of a particular piece of equipment and in
which the allegation is that such use constitutes an unlawful assault. At all
events the inadequacy of Mr Hadley's example in my judgment demonstrates the
difficulty in attempting to catalogue in advance circumstances which will be
exceptional. It does not demonstrate that the category will necessarily be
devoid of examples.
I am therefore satisfied that the Director General's policy is not itself
inconsistent with the terms of the contract and likewise that its application
will not of itself produce results which are inconsistent with the contractual
terms. That is of course a conclusion as to the proper construction of the
contract, but given my conclusion as to the rationality of the approach I
cannot think that the application of public law principles would in fact
produce any different result.
There remains the question of bias. Both sides argued the case on the footing
that it was open to the Court, by one means or another, to determine the
question by whom, i.e by which individual, the contractual discretion should be
exercised. In those circumstances it is perhaps unnecessary to examine the
precise jurisprudential basis for such exercise, although I note that the
applicants assert that it is an implied term of their contracts of employment
that the discretion conferred by paragraphs 9680 and 9730 of the Code will be
exercised by an individual who will approach and be seen to approach the matter
with an open mind. I will assume that that is so. Again I doubt if the
approach of private and public law would here in fact diverge. I propose to
state my conclusions quite shortly.
I do not need to decide whether the objection to Mr Narey exercising the
discretion is well-founded, although I can well understand why the challenge
was mounted. Leaving aside any debate as to the precise ambit of legitimate
managerial comment, and thus putting on one side the Observer article, the
Director General's letter of 17th September 1999 was on any view unfortunate.
However it has been accepted by the Prison Service that the decisions on
individual cases will be taken by Mr Hadley. I cannot accept that Mr Hadley is
by reason of such consultation as he may have had with Mr Narey and by reason
of his subordinate status himself disqualified by association. In fact as I
read Mr Hadley's witness statement he has formulated the new policy himself
without reference to Mr Narey and then informed Mr Narey of his conclusion.
Even if I am wrong about that the rationality of the approach which Mr Hadley
has evolved and the good sense of the reasons he has given for so doing tend in
my view to inspire confidence in his independence rather than to indicate that
he may be influenced by any preconceived approach which it may be possible to
attribute to Mr Narey. In my judgment if Mr Hadley's letter and witness
statement are taken at face value, and I see no reason why they should not be,
they indicate that he has not made up his mind in advance as to how any
individual application should be determined. He can in my judgment be relied
upon conscientiously to consider the individual circumstances pertaining in
each case and there is no basis upon which any legitimate perception of bias on
his part could be entertained.
I am glad to be able to reach this conclusion because had I acceded to Mr
Giffin's submissions so far as concern Mr Hadley it does seem to me that any
officer of the Prison Service of appropriate seniority would inevitably be
similarly infected by association with the Director General. That would be an
unfortunate conclusion, the more so since it does not seem to me in any way
sensible or desirable that "the interests of the department" should be
considered not by officers of the department itself but by officers of the
Prison Service of Scotland or Northern Ireland as was suggested. I should
stress however that I have reached the conclusion which I have not because of
the inconvenience of the Prison Service having disqualified itself from acting
but because I am satisfied that there can in fact be no legitimate objection to
Mr Hadley acting as the decision maker.
In the light of my conclusions and the undertaking by the Prison Service that
Mr Hadley will make the relevant decisions it is probably unnecessary for me to
grant any formal relief on this application but I will of course hear Counsel
as to the form of any order.
In conclusion I should like to express my very real gratitude to both Counsel
for their extremely helpful submissions.
- - - - - - - - - - -
MR JUSTICE TOMLINSON: My conclusions on this application for judicial
review are set out in my judgment, copies of which have been made available in
advance. I will now hear counsel on the form of any order which may be required
to give effect to my conclusion.
MR LEIPER: My Lord, I think we are in agreement that no order is
required to give effect to your Lordship's conclusions. The Prison Service has
made it clear that it will be Mr Hadley who takes the decisions. My learned
friend and I are content that that would not need to be reflected in an
undertaking or anything like that.
MR SALES: My Lord, I have an application to make which is the payment of
our costs. I should just say in relation to the costs position that there were
two changes in the position adopted by the Prison Service. Your Lordship
recalls that there was the first letter written by Mr Nary which we did not
seek to defend in the event but the proceedings were launched against the
background of that letter. Now that position has already been taken care of
with regards to costs in that there has been an order that the Prison Service
pay the applicants' costs in any event up to 7th March.
MR JUSTICE TOMLINSON: I remember that.
MR SALES: Which is when that change occurred. Your Lordship recalls that
the other change that occurred was in relation to the identity of the person
who would take the decision. We wrote two days before the hearing to say that
it would be Mr Hadley, in an attempt to alleviate argument on that point.
What we would say about that is, yes, it was a late indication but that
it has made no difference at all either to the evidence filed or the argument
advanced in that. Your Lordship recalls my learned friend Mr Giffin decided to
proceed with an argument based on bias which itself depended critically upon
allegations in relation to Mr Nary and upon the evidence that had been filed on
that point in relation to Mr Nary which, your Lordship recalls, was basically
just the newspaper article.
In all the circumstances we say that that change of position has not
affected the way the argument was run or the time taken up by the court. We
have won overall and we have won on the bias point. In all the circumstances
we respectfully ask for an order that the applicants pay our costs.
MR JUSTICE TOMLINSON: That is as from a certain date?
MR SALES: Well, it would be costs as from 8th March.
MR LEIPER: My Lord, we do accept of course that costs follow the event
as a general rule, however that general rule can be departed from under the
civil procedures rules now. Obviously, we accept that the majority of the costs
should follow the event. However, we would ask that a proportion, and we
accept a relatively small proportion, of the costs should not be allowed, that
is because of the conduct of the respondents in handling this case. My learned
friend has anticipated the point that I am taking, which is the very late
change - it was in fact the day before the substantive hearing. The very late
change to the position with respect to who the decision-maker would be. Mr
Giffin did indeed argue the point that the substituted decision-maker, Mr
Hadley, would be an inappropriate decision-maker as well. However, that was
almost inevitable given the lateness of the decision that was taken and----
MR JUSTICE TOMLINSON: I do not think he would have argued that point
alone?
MR LEIPER: Of course not, and there is no suggestion that the length of
the proceedings was increased by the argument that took place. However, it is
simply the principle that a respondent should not be allowed to maintain a
position right up until the very date of the hearing, or the day before, and
then suddenly change position contrary to skeleton arguments which have been
exchanged, and contrary to the very evidence that has been submitted. Mr Hadley
submitted a witness statement on 20th April and it was quite clear that he
independently had taken a decision that it would be appropriate for him to
review the original decision and he set out his reasons in that witness
statement for so doing. So that was on 20th April, and yet two-and-a-half
months later it was only then that it was accepted that it would be appropriate
for Mr Hadley to take the revised decision.
So, we say, there was no excuse for that delay in acceptance of that
principle. Indeed, Mr Sales' skeleton argument said when it was exchanged it
was difficult to see what would be gained by requiring the Prison Service to
substitute a different decision-maker, and yet within a week of essentially
that decision it had been reversed. On those principles and simply, as I say,
not because any further costs were incurred.
However, it may well be that had this decision been announced, say, on
20th April, or the change of heart been announced at an earlier stage then this
argument would not need to have taken place on this point. However when a
change like this is made the day before the hearing then there is very little
for a particular party to lose in pursuing their objections. That is the basis
on which we say a small proportion of costs should not be allowed, but
obviously the balance should follow.
MR JUSTICE TOMLINSON: How small?
MR LEIPER: We were thinking something in the region of a proportion of,
say, one-tenth. It is a relatively small part of the argument.
MR JUSTICE TOMLINSON: Yes, thank you. I need not trouble you, Mr Sales.
I think the respondents must have their costs. I have been asked to deprive
the respondents of a very small proportion, perhaps of the order of one-tenth
of their costs, to reflect the fact that very shortly before the hearing they
did change their stance on who would be the decision-maker so far as concerns
the individual applications. But Mr Leiper has very fairly accepted that the
fact that the argument on that point was maintained has not in any way
increased the costs or extended the time of the hearing. In all the
circumstances I think it would be inappropriate to tinker with the order for
costs in the manner suggested. I think the justice of the case overall is
reflected in an order that the applicant must pay the respondent's costs
incurred as from the 8th March of this year. Otherwise, I am told that there is
no need for any formal order to reflect my conclusions.
Mr Leiper, in the course of my judgment I had indicated my gratitude to
both counsel, which I repeat. I would be grateful if you could pass that on to
Mr Giffin, who I understand is on holiday----
MR LEIPER: I will indeed. He apologises for the fact that he cannot
attend. May I briefly, because I think I need to, although it is not entirely
clear under the rules, seek permission to appeal? You will have heard on the
arguments that there were some interesting points raised particularly on the
overlap between public law and private law. Two points in particular: the scope
of the MacLaren (?) decision, the third category there. That is a point which I
would suggest needs higher clarification; and, secondly, the question of
whether public law principles on the adoption of a policy inform or should
inform the proper construction of contracts. Your Lordship's judgment refers to
the British Oxygen case and uses that to inform the proper construction
of the contract and whether such an approach is permissible in private law.
On that basis I would suggest that there are important points of law
which may need clarification and on that basis we would seek permission.
MR JUSTICE TOMLINSON: Yes, I am not minded to grant leave to appeal. I
believe I have made it fairly clear in my judgment that I do not believe that
the outcome would have been any different had I applied public law principles.
As to the second suggested point, it seems to me that is a point on which the
Prison Officers Association would probably be successful in any event. So I
refuse leave to appeal.
MR LEIPER: My Lord, I am grateful, just one point: we have under the
rules 14 days in which to seek permission from the Court of Appeal, subject to
any contrary direction by yourself, may I ask that that period be extended to
28 days given the period in the summer that we are in and the absence of
counsel who has been handling this matter to date, so that the applicants have
sufficient opportunity to consider whether to lodge an appeal?
MR JUSTICE TOMLINSON: Mr Sales?
MR SALES: On that I am not sure, although my learned friend will assist
me, whether Mr Giffin will in fact be back within the 28 days. Is that the
case?
MR LEIPER: I understand he will be available to give due consideration
to this within that time, I spoke to him yesterday.
MR SALES: What we would say about that is it was the applicants who
wanted speedy determination of this matter and specifically asked for it to
come on before the end of the summer term in order to sort the matter out
before the criminal proceedings, or at least the bulk of them, had taken place.
We do say, with respect, that invaluable though the services of Mr Giffin are
undoubtedly that this is a matter where other counsel can advise now whether
there should be application to the Court of Appeal. The Prison Service no less
than the prison officers would like to achieve "closure", if I can use that
expression, in relation to this matter and not have it hanging over them for
longer than is necessary. In all the circumstances we would respectfully
oppose this application.
MR JUSTICE TOMLINSON: What is the current timetable, Mr Leiper, only I
was told one of the trials had started at the beginning of July.
MR LEIPER: I understand that it is reaching completion, a second set of
criminal proceedings I understand were adjourned but the next set will start on
4th September.
MR JUSTICE TOMLINSON: So the first one is not completed yet?
MR LEIPER: It is on the last day I think.
MR JUSTICE TOMLINSON: Summing-up?
MR LEIPER: Summing-up, yes.
MR JUSTICE TOMLINSON: It has taken longer than expected?
MR LEIPER: Much longer, yes.
MR JUSTICE TOMLINSON: I think in all circumstances it is not going to
make very much difference overall whether this is resolved in 14 or 28 days
bearing in mind the time of year. You may have your 28 days Mr Leiper.
MR LEIPER: I am grateful, my Lord.
MR JUSTICE TOMLINSON: Anything else?
MR LEIPER: My Lord, no.
- - - - - -
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