R v Board of Visitors of HM Prison, The Maze, Ex parte Hone (Hone, Ex parte, McCartan, Ex parte, R v Board of Visitors of HM Prison, The Maze, Ex parte McCartan)

A prisoner appearing before a board of visitors on a disciplinary charge has no absolute right to legal representation. The board has a discretion and must decide, in the circumstances of the particular case, whether natural justice requires representation.

The fact that the alleged conduct also constitutes a criminal offence does not itself create such a right. Relevant circumstances include the character and seriousness of the charge and potential punishment, the complexity of the issues, and the prisoner’s ability to present the case. This flexible common law approach is consistent with article 6 of the European Convention on Human Rights.

Two prisoners at HM Prison, The Maze, were found guilty by its board of visitors of disciplinary charges involving assaults on prison officers. The board imposed cellular confinement, loss of privileges and, in one case, loss of remission. Each prisoner sought judicial review on the ground that he had been denied legal representation before the board.

Gibson LJ rejected the applications. The Court of Appeal in Northern Ireland dismissed the prisoners’ appeals on 18 September 1986. On consolidated appeals to the House of Lords, the common issue was whether a prisoner charged with a disciplinary offence was entitled as of right to legal representation at the board’s hearing.

1. Appeals dismissed unanimously. Lord Goff of Chieveley delivered the leading speech. Lord Mackay of Clashfern, Lord Bridge of Harwich, Lord Ackner and Lord Oliver of Aylmerton agreed with his reasons. The orders of the Court of Appeal in Northern Ireland were affirmed.

2. Per Lord Goff, a prisoner has no absolute common law right to legal representation before a board of visitors. A board exercises disciplinary jurisdiction and is bound by natural justice, but whether fairness requires representation depends upon the circumstances of the particular case. The board has a discretion which must be exercised by reference to the relevant circumstances, including the considerations identified in Reg v Secretary of State for the Home Department, Ex parte Tarrant [1985] Q.B. 251.

3. The fact that the conduct charged also amounts to a crime does not itself require legal representation. Both a governor and a board of visitors may determine disciplinary charges based on conduct which is criminal in law, and both are subject to natural justice. Their difference is principally practical: the governor’s jurisdiction is more summary, must ordinarily be exercised quickly and carries more limited powers of punishment. The board’s wider powers may make representation necessary in some cases, but not in every case.

4. The decision in R v Assessment Committee of St Mary Abbotts, Kensington [1891] 1 Q.B. 378 did not establish a right to legal representation before a disciplinary tribunal. It concerned the use of an agent to communicate with a body performing an administrative function. Lord Goff adopted the explanation given in Pett v Greyhound Racing Association Ltd (No 2) [1970] 1 Q.B. 46.

5. Article 6(3)(c) of the European Convention on Human Rights did not assist the appellants. Under Engel v The Netherlands (No 1) (1976) 1 E.H.R.R. 647 and Campbell and Fell v United Kingdom (1984) 7 E.H.R.R. 165, whether a disciplinary allegation is a “criminal offence” for Convention purposes requires consideration of domestic classification, the nature of the offence, and the nature and severity of the possible penalty. The Convention did not confer the universal right claimed. Its flexible approach was harmonious with the common law discretion.

1. House of Lords: The consolidated appeals were dismissed unanimously and the orders of the Court of Appeal in Northern Ireland were affirmed.

2. Court of Appeal in Northern Ireland: On 18 September 1986, the court dismissed both appeals against the rejection of the prisoners’ claims to legal representation as of right.

3. High Court of Justice in Northern Ireland: Gibson LJ dismissed Hone’s judicial review application and ruled that McCartan’s application was governed by Hone’s case. Both applicants had been granted leave to seek judicial review of the disciplinary decisions.