Regina v. Board of Visitors of Her Majesty’s Prison The Maze
(Respondents), ex parte McCartan (A.P.) (Appellant) (Northern
Ireland)
Regina v. Board of Visitors of Her Majesty’s Prison The Maze
(Respondents), ex parte Hone (A.P.) (Appellant) (Northern
Ireland) (Consolidated Appeals)
JUDGMENT
Die Jovis 21° Januarii 1988
Upon consideration of the Cause Cause Regina against,
Board of Visitors of Her Majesty’s Prison The Maze
(Respondents), ex parte McCartan (A.P.) (Appellant) (Northern
Ireland) and Regina against Board of Visitors of Her Majesty’s
Prison The Maze (Respondents), ex parte Hone (A.P.)
(Appellant) (Northern Ireland) (Consolidated Appeals) , That
the House had heard Counsel on Thursday the 15th day of
October last, upon the Petitions and Appeals of Michael
Joseph Hone and Richard McCartan, both currently detained at
Her Majesty’s Prison, The Maze, Lisburn, Northern Ireland,
praying that the matter of the Orders set forth in the
Schedules thereto, namely Orders of Her Majesty’s Court of
Appeal in Northern Ireland of the 18th of September 1986,
might be reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Orders might be reversed, varied
or altered or that the Petitioners might have such other
relief in the premises as to Her Majesty the Queen in Her
Court of Parliament might seem meet (which said Appeals were
by Order of the House of the 31st of March 1987 consolidated);
as upon the Case of the Board of Visitors of Her Majesty’s
Prison, The Maze, lodged in answer to the said Appeals; and
due consideration had this day of what was offered on either
side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Orders of Her Majesty’s Court of
Appeal in Northern Ireland of 18th September 1986 complained
of in the said Appeals be, and the same are hereby, Affirmed
and that the said Petitions and Appeals be, and the same are
hereby, dismissed this House: And it is further Ordered, That
the costs incurred by the Appellants in respect of the said
Appeals be taxed in accordance with the Legal Aid, Advice and
Assistance (Northern Ireland) Order 1981.
Cler: Parliamentor
Judgment: 21.1.88
HOUSE OF LORDS
REGINA
V.
BOARD OF VISITORS OF H.M. PRISON, THE MAZE
(RESPONDENTS),
EX PARTE HONE (A.P.)
(APPELLANT) (NORTHERN IRELAND)
REGINA
V.
BOARD OF VISITORS OF H.M. PRISON, THE MAZE
(RESPONDENTS),
EX PARTE McCARTAN (A.P.)
(APPELLANT) (NORTHERN IRELAND)
(CONSOLIDATED APPEALS)
Lord Chancellor
Lord Bridge of Harwich
Lord Ackner
Lord Oliver of Aylmerton
Lord Goff of Chieveley
LORD MACKAY OF CLASHFERN
My Lords,
I have had the advantage of reading in draft the speech to
be delivered by my noble and learned friend Lord Goff of
Chieveley. I agree with him that these appeals should be
dismissed for the reasons which he has given.
LORD BRIDGE OF HARWICH
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend Lord Goff of Chieveley. I agree with
it and for the reasons he gives I would dismiss the appeals.
LORD ACKNER
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend Lord Goff of Chieveley. I agree with
it and for the reasons he gives I would dismiss the appeals.
LORD OLIVER OF AYLMERTON
My Lords,
I have had the advantage of reading the speech prepared by
my noble and learned friend, Lord Goff of Chieveley and I agree
that the appeals should be dismissed for the reasons which he has
given.
LORD GOFF OF CHIEVELEY
My Lords,
There are before your Lordships’ House two consolidated
appeals, brought by leave of this House, from a decision of the
Court of Appeal in Northern Ireland. Both appeals raise the same
issue, viz. whether a prisoner appearing before a board of visitors
on a disciplinary charge is entitled as of right to legal
representation at the hearing.
The factual background to the two cases can be briefly
summarised as follows. The first of the two appellants, Michael
Joseph Hone, is serving a term of life imprisonment at Her
Majesty’s Prison, The Maze, Lisburn. On 23 October 1984, he was
charged with an offence against discipline contrary to rule 31(5) of
the Prison Rules (Northern Ireland) 1982 (S.R. 1982 No. 170); the
offence so charged was that he had assaulted a prison officer,
Officer Wylie, by throwing a mug of tea in his face and hitting
him with his fist and boot. Rule 32 of the Rules of 1982 makes
provision for awards which the governor may make for an offence
against discipline; under rule 33 (which is concerned with more
serious offences) there is a provision, in rule 33(l)(e), whereby, in
the case of any serious offence against discipline for which in the
view of the governor it may be desirable to award a more severe
punishment than is provided in rule 32, the governor may refer the
charge to the Secretary of State. On 30 October the governor of
the Maze Prison, having investigated the case (to which this
appellant pleaded not guilty), decided that there was a charge to
answer and that he should refer the case to the Secretary of
State. The latter delegated his powers under rule 33 to the board
of visitors in the normal way, pursuant to rule 33(5). They held
an inquiry on 3 May 1985, the chairman being Dr. D. R. Delargy.
They found the charge proved, and awarded 60 days’ loss of
privileges and the first 30 days in cellular confinement.
– 2 –
On 8 May 1985 the first appellant was granted leave to
apply for judicial review. On 11 October 1985 his application was
dismissed by Gibson L.J.J and on appeal his decision was affirmed
by the Court of Appeal on 18 September 1985. Before Gibson
L.J., the first appellant relied upon a number of grounds, all of
which were rejected by him. Before the Court of Appeal, his
grounds of appeal related to a complaint that he was denied legal
representation before the board of visitors. His principal grounds
of appeal were as follows:
“1. That the trial judge erred in law in holding that the
applicant does not have a right to legal representation when
appearing before the board of visitors. 2. That having held
that the board had a discretion to permit legal
representation the trial judge erred in holding that the board
had exercised its discretion properly in refusing to permit
the applicant to be legally represented. 3. That no
reasonable board of visitors properly directing itself to
issues of fact and law could reasonably have refused the
applicant’s request for legal representation. 4. That the
trial judge misdirected himself by holding that ‘rule 33 of
the 1982 Prison Rules indicates that an assault is not one of
the more serious offences’ and further misdirected himself
by holding that ‘not being classified as a more serious
offence the range of penalties is correspondingly less than in
the case of more serious offences.'”
All these submissions were rejected by the Court of Appeal.
The second of the two appellants, Richard McCartan, is
serving a total sentence of 24 years imprisonment, also at the
Maze Prison. On 16 November 1980, he was charged with two
offences against prison discipline, contrary to rule 31(5) of the
Rules of 1982, viz. (1) that he assaulted a prison officer, Officer
McKinney, causing severe injuries to his face, and (2) that he
assaulted Officer Doherty by kicking him on the left leg. On 6
March 1985, the governor, having investigated these two charges,
decided that there were cases to answer and that he should refer
them to the Secretary of State under rule 33(1). The Secretary of
State having delegated his powers to the board of visitors, they
inquired into the offences on 1 April 1985, the chairman being Mr.
Bach.
They found both charges proved. In respect of the assault
on Officer McKinney, they awarded 100 days’ loss of remission and
30 days’ cellular confinement, the latter suspended for six months.
In respect of the assault on Officer Doherty, they awarded 20
days’ cellular confinement and 30 days’ loss of remission, the
latter suspended for six months. Leave to apply for judicial
review was granted on 24 May 1985. The only ground relied on by
this appellant was that he had a right to legal representation
before the board of visitors and was denied that right. It was
recognised that his case was governed by the case of Hone and so
Gibson L.J., at the invitation of counsel for McCartan, ruled that
he had no such right. He then appealed to the Court of Appeal
on that one ground; and on 18 September 1986 the Court of
Appeal, having dismissed Hone’s appeal, proceeded also to dismiss
the appeal of McCartan. The appeal before your Lordships’ House
– 3 –
on both appeals is, as already recorded, confined to the single
issue whether the appellants were entitled as of right to legal
representation before the board of visitors.
.
I turn first to the statutory framework. The Rules of 1982
were made pursuant to section 13 of the Prison Act (Northern
Ireland) 1953. The relevant rules for present purposes are rules 29
to 33 inclusive. Rule 29 is entitled “Disciplinary charges.” Rule
29(3) is to the effect that every charge against a prisoner shall be
dealt with by the governor or (where there is one) the deputy
governor or, if neither is available, another officer authorised by
the governor. Rule 29(5) provides:
“The governor shall inquire into any charge not later, save
in exceptional circumstances, than the next day unless that
day is a Sunday or public holiday.”
Rule 30 is entitled “Rights of prisoners charged.” It provides:
“(1) Where a prisoner is charged with an offence against
discipline, he shall be told about the charge as soon as
possible and, in any case, before the time when it is
inquired into by the governor. (2) At any inquiry into a
charge against a prisoner, he shall be given a full
opportunity of hearing what is alleged against him and of
presenting his own case.”
Rule 31 is entitled “Offences against discipline.” It sets out a list
of 21 offences against discipline, including, in rule 31(5), the case
where a prisoner commits any assault. Some of these disciplinary
offences, like an assault under rule 31(5), also constitute criminal
offences; others do not. Rule 32 makes provision for governor’s
awards. The awards which may be made by the governor are
listed in rule 32(1) as follows:
“The governor may, subject to rules 33 and 34, make one or
more of the following awards for an offence against
discipline – (a) caution; (b) loss of remission for a period not
exceeding 28 days; (c) stoppage of earnings for a period not
exceeding 28 days; (d) stoppage of any or all privileges
other than earnings, for a period not exceeding 28 days or
90 days in the case of evening association; (e) exclusion
from associated work for a period not exceeding 14 days; (f)
cellular confinement for a period not exceeding three days.”
Rule 33 is concerned with more serious offences. Rule 33(1)
provides:
“Where a prisoner is charged with any of the following
offences – (a) mutiny or incitement to mutiny? (b) man
offence under the Act; (c) gross personal violence to an
officer; (d) gross personal violence to any person not being
an officer; (e) any serious or repeated offence against
discipline for which in the view of the governor it may be
desirable to award a more severe punishment than is
provided in rule 32; the governor, unless he dismisses the
charge, may, and in the case of an offence under (b) shall,
refer the charge to the Secretary of State.”
– 4 –
Under rule 33(5), the Secretary of State may delegate his powers
under the rule to the board of visitors in any particular case. The
awards which he (or the board of visitors on his behalf) may make
are listed In rule 33(2) and are considerably more substantial than
those within the power of the governor.
I should also mention that rules 101 to 108 make provision
for the powers and duties of boards of visitors. It is not, I think
necessary to refer to these rules, except to record that rule 105 is
concerned with adjudication procedure by boards.
Before your Lordships’ House, the submissions on behalf of
the appellants were as follows. The basic submission was that a
convicted prisoner retains all his civil rights, except those which
are taken away from him expressly or by necessary implication;
and that an ordinary citizen charged with a criminal offence is
entitled to legal representation before the tribunal which hears the
charge against him. It was however accepted that, on an inquiry
by the governor of a prison, a prisoner has no right to legal
representation; such a right, it was submitted, applied only to
hearings before boards of visitors, when the prisoner is charged
with a criminal offence or the equivalent of a criminal offence.
The submission now advanced before your Lordships’ House
was dismissed by Gibson L.J. at first instance, in the case of
Hone, on the simple ground that he had previously rejected the
same submission In re Lillis (1984) N.LJ.B. 15. However, the
matter was the subject of very careful consideration by the court
of Appeal, the judgment of the Court being delivered by Lord
Lowry C.J. He first reviewed the relevant provisions of the
Prison Rules applicable in England and in Northern Ireland. These
are not identical, but he considered that there was no material
distinction between them for the purposes of considering the
argument before the court; in particular, rule 49(2) of the English
Prison Rules 1964 (S.I. 1964 No. 388) is in terms identical to rule
30(2) of the Northern Ireland Rules of 1982 quoted above. He
therefore proceeded to consider the submission before him with
reference to both the English and the Northern Ireland authorities.
I, for my part, would be content respectfully to adopt Lord
Lowry C.J.’s analysis of the authorities as my own; but since this
is the first occasion upon which the present question has come
before your Lordships’ House, I propose to refer to certain aspects
of them. The first of the authorities is the decision of the Court
of Appeal in R. v. Assessment Committee of St. Mary Abbotts,
Kensington [1891] 1 Q.B. 378. In that case it was held that a
householder who objected to a valuation list and wished his
objection to be advanced before the assessment committee need
not appear in person before the committee but could depute
another person to do so on his behalf. This decision has been
invoked on subsequent occasions in support of the proposition that
any person appearing before a disciplinary tribunal is entitled to
legal representation. The decision of the Court of Appeal in Pett
v. Greyhound Racing Association Ltd. [1969] 1 Q.B. 125 appeared,
as first sight, to give some credence to that proposition. In that
case the plaintiff claimed the right to legal representation at an
inquiry by the association into a disciplinary matter, concerned
with a serious charge against the plaintiff relating to the
circumstances in which a greyhound of his was withdrawn from a
– 5 –
race, it being alleged that traces of barbiturates were found in the
dog’s urine. On an interlocutory appeal Lord Denning M.R., in
holding that natural justice required that in matters affecting a
man’s reputation or livelihood or any matters of serious purport he
should, if he wished, be legally represented, relied upon the St.
Mary Abbotts case; and Russell L.J., at p. 135, referred to his
“common law right” to be so represented. However, on the
substantive hearing of the case (Pett v. Greyhound Racing
Association Ltd. (No. 2) [1970] 1 Q.B. 46), Lyell J. concluded that
the only duty on the association was to observe the rules of
natural justice, and distinguished the St. Mary Abbotts case as
being concerned not with legal representation before a tribunal but
with a man employing an agent to communicate with a body
performing an administrative act. He said, at p. 63:
“It appears to me that the Court of Appeal regarded the
overseers as performing an administrative act in preparing
the valuation lists …. It has, so far as I am aware,
never been suggested that the valuation officer in
considering such objections is acting otherwise than in an
administrative capacity. In view of the many authorities
that domestic tribunals are subject only to the duty of
observing what are called the rules of natural justice and
any procedure laid down or necessarily to be implied from
the instrument that confers their power, I am unable to
follow the views expressed in the Court of Appeal, that the
plaintiff is entitled to appear by an agent unless such right
was expressly negatived by the rules of the club.”
Subsequent cases have proceeded on the same basis. Thus in
Enderby Town Football Club Ltd, v. Football Association Ltd.
[1971] Ch. 591, Lord Denning M.R. rejected the suggestion that a
man who is charged before a domestic tribunal is entitled as of
right to be legally represented; on the contrary, he regarded that
matter as being within the discretion of the tribunal. A similar
suggestion was rejected by the Court of Appeal in Fraser v. Mudge
[1975] 1 W.L.R. 1132, a case which is very much in point in the
present case. There a prisoner asked for an injunction to restrain
a board of visitors from inquiring into a charge against him of
assaulting a prison officer unless he was represented by a solicitor
and counsel of his choice. The case therefore raised the question
whether, in such circumstances, the prisoner was entitled to legal
representation as of right. Chapman J. refused to grant the
injunction, and his decision was affirmed by the Court of Appeal.
Roskill L.J. said, at p.
“The argument of Mr. Sedley, as I follow it, really involves
that justice cannot be done or cannot at least be seen to be
done by the defendants, the visitors, in this case unless
there is legal representation of the plaintiff. I wish to
make it plain that I do not subscribe to the view that in
every type of case, irrespective of the nature or jurisdiction
of the body in question, justice can neither be done nor be
seen to be done without legal representation of the party or
parties appearing before that body. Such a proposition to
my mind is untenable. There are many bodies before which
a party or parties can be required to appear but who can do
justice and can be seen to do justice without the party
against whom complaint is made being legally represented.
– 6 –
Further, as Lord Denning M.R. has said, if the argument in
relation to rule 49(2) of the Prison Rules 1964 were well
founded, it would equally apply to complaints heard by the
governor to which the same language applies, a proposition
which I think is also untenable. One looks to see what are
the broad principles underlying these rules. They are to
maintain discipline in prison by proper, swift and speedy
decisions, whether by the governor or the visitors; and it
seems to me that the requirements of natural justice do not
make it necessary that a person against whom disciplinary
proceedings are pending should as of right be entitled to be
represented by solicitors or counsel or both.”
Subsequently, in Reg, v. Secretary of State for the Home
Department, Ex parte Tarrant [1985] Q.B. 251, a Divisional Court
(consisting of Kerr L.J. and Webster J.) accepted Fraser v. Mudge
as binding authority that, before a board of visitors, a prisoner
charged with a disciplinary offence has no right to legal
representation, though it was held that a board of visitors has a
discretion to grant representation; and, in his full and careful
judgment, Webster J. referred to considerations which he
considered that every board of visitors should take into account
when exercising its discretion whether to allow legal
representation, or indeed the assistance of a friend or adviser, to
a prisoner appearing before it on a disciplinary charge. As
appears from Lord Lowry C.J.’s judgment in the present case, the
decision of the Divisional Court in Ex parte Tarrant has been
twice followed in Northern Ireland, by MacDermott J. in Ex parte
Daly (unreported, 1984) and by Gibson J. (as he then was) in In re
Lillis (1984) N.IJ.B. 15. It was the latter decision which Gibson
L.J. applied in rejecting the application of the first appellant in
the present case.
In advancing his submissions for the appellants in the
present case before your Lordships’ House, Mr. Hill had of
necessity to submit that the decision of the Court of Appeal in
Fraser v. Mudge was wrong. In support of his submissions, which I
have already summarised, he relied upon rule 30(2) of the Rules of
1982, which provides that at an inquiry into a charge against a
prisoner he shall be given a full opportunity of presenting his own
case. He stressed that a hearing before a board of visitors is a
sophisticated hearing. In particular, he submitted, there is an oral
hearing; a formal plea is entered; cross-examination is allowed and
witnesses are called; the onus and standard of proof are the same
as in a criminal trial; free legal aid is available; punishments are
imposed; a plea in mitigation can be entered; and the board has
greater powers of punishment than those exercised by magistrates’
courts. He also, like others before him, invoked the St. Mary
Abbotts case [1891] 1 Q.B. 378 as authority for the proposition
that each appellant had a common law right to appoint a lawyer
as his agent to appear before the board of visitors on his behalf.
I am unable to accept these submissions. I would first of
all reject the argument founded upon the St. Mary Abbotts case as
misconceived, for the very reasons given by Lyell J. in Pett v.
Greyhound Racing Association Ltd(No. 2) [1970] 2 Q.B. 46, quoted
above, that the case is not in point since it was concerned only
with the making of a communication to an administrative body.
But, so far as Mr. Hill’s wider submissions are concerned, I am
– 7 –
unable to accept his second proposition that any person charged
with a crime (or the equivalent thereof) and liable to punishment
is entitled as a matter of natural justice to legal representation.
No doubt it is true that a man charged with a crime before a
criminal court is entitled to legal representation – both before the
Crown Court and (as a matter of statute) before a magistrates’
court (see section 122 of the Magistrates’ Courts Act 1980 and
article 164(1) of the Magistrates’ Courts (Northern Ireland) Order
1981 (S.I. No. 1676) (N.I. 26)). These statutory provisions derive
from section 2 of Prisoners’ Counsel Act 1836 (6 & 7 Will. 4, c.
114) (enacted to reform the law following the decision of the
Court of King’s Bench in Collier v. Hicks (1831) 2 B. & Ad. 663)
and section 9 of the Petty Sessions (Ireland) Act 1851 (14 & 15
Vict. c. 93). No doubt it is also correct that a board of visitors
is bound to give effect to the rules of natural justice. But it
does not follow that, simply because a charge before a disciplinary
tribunal such as a board of visitors relates to facts which in law
constitute a crime, the rules of natural justice require the tribunal
to grant legal representation. Indeed, if this were the case, then,
as Roskill L.J. pointed out in Fraser v. Mudge [1975] 1 W.L.R.
1132, exactly the same submission could be made in respect of
disciplinary proceedings before the governor of a prison. Mr. Hill
was at pains to escape from this conclusion by attempting to
distinguish between a governor and a board of visitors, on the
basis that there was no right of legal representation before the
governor but an absolute right to legal representation before the
board of visitors. I for my part am unable to accept this
distinction. Each, both governor and board of visitors, is
exercising a disciplinary jurisdiction; and, as the Rules of 1982
clearly demonstrate, each may do so in respect of offences against
discipline which could in law constitute criminal offences. Each
must also be bound by the rules of natural justice. The difference
between them is not so much a legal as a practical difference.
The jurisdiction exercised by the governor is of a more summary
nature, and should properly be exercised with great expedition;
furthermore the punishments which he can award are limited to
those set out in rule 32 of the Rules of 1982 , though he can
refer the matter to the Secretary of State (and, through him, to a
board of visitors) under rule 33(l)(e) if he considers that it may be
desirable that a more severe punishment should be awarded. In
the nature of things, it is difficult to imagine that the rules of
natural justice would ever require legal representation before the
governor. But though the rules of natural justice may require
legal representation before a board of visitors, I can see no basis
for Mr. Hill’s submission that they should do so in every case as
of right. Everything must depend on the circumstances of the
particular case, as is amply demonstrated by the circumstances so
carefully listed by Webster J. in Reg, v. Secretary of State for
the Home Department, Ex parte Tarrant [1985] 1 Q.B. 251 as
matters which boards of visitors should take into account. But it
is easy to envisage circumstances in which the rules of natural
justice do not call for representation, even though the disciplinary
charge relates to a matter which constitutes in law a crime, as
may well happen in the case of a simple assault where no question
of law arises, and where the prisoner charged is capable of
presenting his own case. To hold otherwise would result in wholly
unnecessary delays in many cases, to the detriment of all
concerned including the prisoner charged, and to wholly
unnecessary waste of time and money, contrary to the public
– 8 –
interest. Indeed, to hold otherwise would not only cause injustice
to prisoners; it would also lead to an adventitious distinction being
drawn between disciplinary offences which happen also to be
crimes and those which happen not to be so, for the punishments
liable to be imposed do not depend upon any such distinction.
It remains for me, however, to consider a submission of Mr.
Hill founded upon the European Convention on Human Rights
(Convention for the Protection of Human Rights and Fundamental
Freedoms (1953) (Cmd. 8969). Article 6(3) of the European
Convention provides:
“Everyone charged with a criminal offence has the following
minimum rights: … (c) to defend himself in person or
through legal assistance of his own choosing …”
It was the submission of Mr. Hill that, under that provision, as
interpreted by the European Court of Human Rights in Campbell
and Fell v. United Kingdom (1984) 7 E.H.R.R. 165, the appellants
in the present case were entitled to legal representation before
the board of visitors, and that in this respect the European
Convention and the common law are harmonious.
It is to be observed that, under article 6 of the Convention,
a citizen is given the right to defend himself through legal
assistance of his own choosing where he is charged with a criminal
offence. If that provision were to be given a strict interpretation,
it would lead to its application in all disciplinary proceedings
where the facts charged constituted in law a crime; and, in the
context of prison discipline, this would be equally applicable in
disciplinary proceedings before a governor and in such proceedings
before a board of visitors. It is not surprising, therefore, to
discover that the provision has been the subject of interpretation
by the European Court of Human Rights to ensure that its
application does not exceed the bounds of common sense. This the
court has achieved by imposing a restrictive meaning upon the
expression “criminal offence” in article 6. So in Engel v. The
Netherlands (No. 1) (1976) 1 EHRR 647, a case concerned with
military discipline, the court had this to say (in paragraph 82 of
the judgment):
“In this connection, it is first necessary to know whether
the provision(s) defining the offence charged belong,
according to the legal system of the respondent state, to
criminal law, disciplinary law or both concurrently. This
however provides no more than a starting point. The
indications so afforded have only a formal and relative value
and must be examined in the light of the common
denominator of the respective legislation of the various
contracting states. The very nature of the offence is a
factor of great import. When a serviceman finds himself
accused of an act or omission allegedly contravening a legal
rule governing the operation of the armed forces, the state
may in principle employ against him disciplinary law rather
than criminal law. In this respect, the court expresses its
agreement with the Government [of the Netherlands].
However, supervision by the court does not stop there.
Such supervision would generally prove to be illusory if it
– 9 –
did not also take into consideration the degree of severity
of the penalty that the person concerned risks incurring. In
a society subscribing to the rule of law, there belong to the
’criminal’ sphere deprivations of liberty liable to be imposed
as a punishment, except those which by their nature,
duration or manner of execution cannot be appreciably
detrimental. The seriousness of what is at stake, the
traditions of the contracting states and the importance
attached by the Convention to respect for the physical
liberty of the person all require that this should be so.”
These principles were applied by the court in the case of Campbell
& Fell v. United Kingdom (1984) 7 E.H.R.R. 165, where it was
stated, in paragraphs 70-72, at pp. 194-195: (1) that the first
matter to be ascertained is whether or not the text defining the
offences is in issue belongs, according to the domestic legal
system, to criminal law, disciplinary law or both concurrently. (2)
That, in any event, the indications so afforded by the national law
have only a relative value; the very nature of the offence is a
fact of greater import. In this connection, the court referred to
the factor that some matters may be more serious than others,
and that the illegality of some acts may not turn on the fact that
they were committed in prison. However, the court then
commented:
“The court considers that these factors, whilst not of
themselves sufficient to lead to the conclusion that the
offences with which the applicant was charged have to be
regarded as ‘criminal’ for Convention purposes, do give them
a certain colouring which does not entirely coincide with
that of a purely disciplinary matter.”
(3) That it is necessary to have regard to the nature and degree
and severity of the penalty which might be incurred; and that
deprivation of liberty was “in general” a penalty that belonged to
the “criminal” sphere.
Now in English law, the objective which is sought to be
achieved is, in my opinion, indeed harmonious with article 6 of the
Convention as interpreted by the court. It is only the technique
which is different. In English law, we are fortunate in having
available to us a discretionary power, so often employed when it is
necessary to weigh the effect of different factors; and it is
established that disciplinary tribunals have, in the exercise of their
discretion, and having regard to a broad range of factors including
those mentioned by the European Court, to decide whether natural
justice requires that a person appearing before the tribunal should
be legally represented. The European Court, being under the duty
to apply principles embodied in the Convention, is striving, as I
see it, to achieve the same flexibility by giving a liberal
interpretation to the expression “criminal offence” in article 6. It
follows that I cannot, for my part, see that recourse to the
Convention can assist the appellants in the present case. The
absolute right to legal representation now claimed by the
appellants is not, as I understand the position, required by the
Convention any more than it is required by English law.
For these reasons I would dismiss both appeals.
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