[QUEEN'S BENCH DIVISION]

REGINA v. BOARD OF VISITORS OF HULL PRISON,

Ex parte ST. GERMAIN AND OTHERS (NO. 2)

Natural Justice - Evidence - Admissibility - Offences against prison discipline - Hearing by board of visitors - Hearsay evidence admitted - Board's refusal of prisoners' requests for witnesses to be called - Whether contrary to natural justice

After a riot in a prison between August 31 and September 2, 1976, over 500 offences against discipline, contrary to rule 47 of the Prison Rules 1964, were alleged against 185 prisoners, including the seven applicants. The charges were heard by the prison's board of visitors whose members travelled to the several prisons to which the prisoners had been transferred. The chairman of the board, in exercising his authority to control the proceedings, ruled that certain witnesses that a prisoner had requested to attend should not be called and, during the hearings, reference was made to statements by prison officers, who were not available to give evidence, to support the evidence given by a witness. The applicants were found guilty of offences against prison discipline and were sentenced to loss of remission and other punishments. They applied for orders of certiorari to quash the findings of guilt made against them but the Divisional Court [1978] 2 W.L.R. 598 held that certiorari would not lie against a board of visitors. The Court of Appeal [1979] 2 W.L.R. 42 reversed that decision and remitted the applications to the Divisional Court for hearing and determination.

On the question whether the proceedings were conducted in a manner contrary to the rules of natural justice:-

Held, granting six of the seven applications, (1) that, since the applicants had been charged with serious disciplinary offences which, if established, would result in a substantial loss of liberty, the rules of natural justice required that they should have the opportunity of calling evidence which was likely to assist in establishing the vital facts at issue (post, p. 1408E); that the chairman of the board had a discretion to disallow witnesses to be called but that discretion had to be exercised reasonably and in good faith and, therefore, a discretion exercised on the basis that there was ample evidence against

a prisoner or on a mistaken understanding of the prisoner's defence or on the basis of considerable administrative inconvenience would be an improper exercise of the discretion and contrary to the rules of natural justice (post, p. 1406D-F); and that, in the case of one applicant, the chairman's ruling had been based on a misunderstanding of the defence and, therefore, that finding of guilt would be quashed.

(2) That the technical rules of evidence were not applicable to proceedings before the board of visitors but the admission of hearsay evidence was subject to the overriding obligation to provide the prisoner with a fair hearing and a fair opportunity to controvert the charge; that where a prisoner wished to dispute the hearsay evidence and there were insuperable or very grave difficulties in arranging for the attendance of the prison officer, the board should have refused to admit the evidence or, if it had already come to their notice, they should have expressly dismissed it from their consideration (post, pp. 1408H-1409B, D-E,H-1410A); and that since, in some cases, the applicants had not been given an opportunity to deal with the hearsay evidence and where necessary to cross-examine the witness, those findings of guilt would be quashed (post, p. 1411D-H).

Board of Education v. Rice [1911] A.C. 179, H.L.(E.); General Medical Council v. Spackman [1943] A.C. 627, H.L.(E.) and Kanda v. Government of Malaya [1962] A.C. 322, P.C. applied.

The following cases are referred to in the judgment:

Board of Education v. Rice [1911] A.C. 179, H.L.(E.).

Ceylon University v. Fernando [1960] 1 W.L.R. 223; [1960] 1 All E.R. 631, P.C.

De Verteuil v. Knaggs [1918] A.C. 557, P.C.

General Medical Council v. Spackman [1943] A.C. 627; [1943] 2 All E.R. 337, H.L.(E.).

Kanda v. Government of Malaya [1962] A.C. 322; [1962] 2 W.L.R. 1153, P.C.

Reg. v. Board of Visitors of Hull Prison Ex parte St. Germain [1979] Q.B. 425; [1979] 2 W.L.R. 42; [1979] 1 All E.R. 701, C.A.

Reg. v. Deputy Industrial Injuries Commissioner Ex parte Moore [1965] 1 Q.B. 456; [1965] 2 W.L.R. 89; [1965] 1 All E.R. 81, C.A.

Reg. v. Turnbull [1977] Q.B. 224; [1976] 3 W.L.R. 445; [1976] 3 All E.R. 549, C.A.

Rex v. Fulham Hammersmith and Kensington Rent Tribunal Ex parte Zerek [1951] 2 K.B. 1; [1951] 1 All E.R. 482, D.C.

Rex v. Local Government Board Ex parte Arlidge [1914] 1 K.B. 160, C.A.

Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

Wiseman v. Borneman [1971] A.C. 297; [1969] 3 W.L.R. 706; [1969] 3 All E.R. 275, H.L.(E.).

The following additional cases were cited in argument:

Breen v. Amalgamated Engineering Union [1971] 2 Q.B. 175; [1971] 2 W.L.R. 742; [1971] 1 All E.R. 1148, C.A.

Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329; [1952] 1 All E.R. 1175, C.A.

Maclean v. Workers Union [1929] 1 Ch. 602.

Norman v. National Dock Labour Board [1957] 1 Lloyd's Rep. 455, C.A.

APPLICATIONS for orders of certiorari.

Following a riot at Hull Prison between August 31 and September 2,

1976, the seven applicants, Ronald St. Germain, Kenneth Anderson, Geoffrey Dennis Cotterill, James Joseph Pike, Peter Rajah, John Michael Reed and Keith Saxton, were all charged with offences against discipline under rule 47 of the Prison Rules 1964 (S.I. 1964 No. 388) and those charges were heard by members of the Board of Visitors of Hull Prison. In the case of the applicant St. Germain, the board of visitors, on December 16, 1976, found that he was guilty of an offence under rule 47 (6) by absenting himself without permission from "A" wing between 20.00 hours on August 31, 1976, and 12.00 hours on September 2, 1976; and an offence under rule 47 (20) by being concerned in a concerted act of indiscipline between 20.00 hours on August 31 and 12.00 on September 2, 1976, by being on segregation unit and "A" wing roofs with others. The board made disciplinary awards which included loss of privileges, loss of earnings and 60 days' loss of remission on the first charge, loss of privileges, loss of earnings and 90 days' loss of remission on the second charge. The applicant applied for an order of certiorari to quash the decision of the board on the ground that the board had failed to comply with the rules of natural justice.

Findings of guilt were made against the other six applicants and varying disciplinary awards, including loss of remission were made against them. Each applied for an order of certiorari on similar grounds to that of the applicant St. Germain.

On January 20, 1977, the Board of Visitors of Wandsworth Prison made a determination that the applicant, Raymond David Rosa, was guilty of an offence against discipline, namely, committing an assault on January 14, 1977, and made a disciplinary award, namely 90 days' loss of remission. He also applied for an order of certiorari to quash the decision of the board of visitors on the ground that the board had failed to comply with the rules of natural justice. His application was heard at the same time as the applications to quash the decision of the Board of Visitors of Hull Prison but it does not call for a report.

The facts are stated in the judgment.

Andrew Collins for the applicants St. Germain, Saxton and Rosa.

Bernard Gateshill for the applicant Cotterill.

Peter Thornton for the applicants Rajah, Reed, Pike and Anderson.

Alan Campbell Q.C., Nicholas Bratza and Robert Owen for the board of visitors.

June 15. GEOFFREY LANE L.J. read the following judgment of the court. These are seven motions for orders of certiorari against the Board of Visitors of Hull Prison and one application for a similar order directed to the Board of Visitors of Wandsworth Prison. All these matters, except the Wandsworth case which can be dealt with separately, arose out of a riot which took place at Hull Prison from August 31 to September 2, 1976. Serious damage was done to the prison which made it largely uninhabitable. The inmates or most of them were dispersed to other prisons.

It was decided not to take criminal proceedings against the rioters but to deal with them internally under the prison disciplinary procedure. For reasons which will become apparent when the statute and regulations are examined, the task of adjudicating upon the various allegations fell

upon representatives of the Board of Visitors of Hull Prison. Three such representatives were selected, two of whom were justices of the peace. Some idea of the size of their task can be gained from the fact that proceedings were taken against 185 of the 310 inmates of the prison and that the total number of individual charges was over 500. The hearings took place at a number of different prisons, the board moving on from one prison to another as the hearings were completed. Whatever other criticisms may have been levelled at the board, no one could fail to admire their industry and application and no one could fail to applaud the way in which the proceedings were recorded and documented.

The adjudication took place on various dates during November and December 1976. Applications for judicial review of the findings were made during the early part of 1977. The matter first came before the Divisional Court on December 5, 1977, when the respondent's contention that the court had no jurisdiction to entertain the application was upheld. On October 3, 1978, the Court of Appeal reversed that decision on the grounds that the board, when adjudicating upon disciplinary charges, were performing a judicial, and not merely an administrative, act, that they had a duty to act judicially and that their decisions were in principle subject to judicial review by way of certiorari: see Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425.

We turn now to the statutory provisions and regulations so far as they are material. Section 47 of the Prison Act 1952 provides that the Secretary of State may make rules for the regulation and management, inter alia, of prisons and for the discipline and control of persons required to be detained therein. Subsection (2) provides that rules made under section 47 "shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case."

The rules at the material time are contained in the Prison Rules 1964 (S.I. 1964 No. 388). Rule 49 is headed "Rights of prisoners charged." Under paragraph (2) of that rule it is stated:

"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."

In our judgment the statutory obligation to make the rules, and rule 49 (2) in particular, are merely declaratory of one of the basic rules of natural justice, namely, that every party to the controversy has a right to a fair hearing. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them: see per Lord Denning M.R. in Kanda v. Government of Malaya [1962] A.C. 322.

Rule 50 deals with the powers of prison governors to make awards for offences against discipline. In respect of graver offences as defined by rule 51, the governor shall, unless he dismisses the charge, forthwith inform the Secretary of State and shall, unless otherwise directed by him, refer the charge to the board of visitors. Rule 52 provides that where a prisoner is charged with mutiny or incitement to mutiny or doing gross personal violence to an officer, then, where such a charge is referred to a board of visitors, the chairman shall summon a special meeting of which not more than five nor fewer than three members, at least two being justices of the peace, shall be present. The board thus constituted shall inquire into the charge and, if they find the offence proved, shall make one or more of the awards listed in rule 51 (4). If they make an award of forfeiture of

remission, the period forfeited may exceed 180 days. Rule 56 provides that the Secretary of State may remit a disciplinary award or mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe. He is not given any power to quash the adjudication.

A document entitled "Explanation of the Procedure at Adjudications by Board of Visitors" is provided to every prisoner accused of a disciplinary offence who is to appear before a board of visitors. It sets out the procedure which follows essentially that which would occur in any magistrates' court on summary trial. Three paragraphs of this explanation are relevant and we quote from them:

"(5) When a witness has given his evidence you will be told that you may question him if you wish. You may then ask the witness any questions which you think may help your case. Remember just to ask questions and not to argue with the witness. If you want to dispute something he has said you should either ask him another question or explain your point to the chairman who will help you."

"(7) If you want to call witnesses ask the chairman for permission to do so. Tell him who they are and what you think their evidence will prove. If the board think that the witnesses may be able to give useful evidence they will hear them. After they have been heard the board will ask you if you want to say anything further about the case, and you may then comment on all the evidence and point out anything that you think is in your favour."

"(8) If you have pleaded not guilty, but in the end are found guilty, you will be given an opportunity, before punishment is imposed, of giving any reasons why you think you should be dealt with leniently."

Megaw L.J. in his judgment in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425, 450 referred to the submissions of counsel that proceedings of boards of visitors for offences against discipline are "subject to judicial review, at any rate where the allegations are of breaches of the procedure laid down in the Prison Rules and/or rules of fairness and natural justice." He said:

"I think that is too widely stated. It is certainly not any breach of any procedural rule which would justify or require interference by the courts. Such interference, in my judgment, would only be required, and would only be justified, if there were some failure to act fairly - fairly, having regard to all relevant circumstances - and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice, which was capable of remedy."

He further pointed out that which has been frequently stated recently, that it would be fallacious to assume that the requirements of natural justice in one sphere are necessarily identical in a different sphere. In our judgment there is nothing in the procedure as detailed in the written explanation to which any objection can properly be taken.

We turn now to the way in which the case has been presented on behalf of the applicants. Broadly speaking each applicant complains that he was not given a "proper opportunity of presenting his case," and that the board failed to observe the elementary rules of fair play or natural justice and that accordingly the findings should be quashed. In particular there are four specific complaints: (1) that the board refused to allow the

applicants to call witnesses in support of their cases; (2) that they admitted and acted upon statements made during the hearing by the governor which were based on reports from prison officers who did not give oral evidence; (3) that the chairman of the board insisted on questions by the applicants in cross-examination being channelled through him; and (4) that the applicants were not allowed to speak in mitigation after a finding of guilt.

Counsel accepted that it was perfectly proper for a chairman to insist that all questions were put through him where he was of the view that otherwise arguments would break out between the prisoner and the witness, which would make the proceedings difficult to control. There was some suggestion that the chairman should have no discretion to disallow the calling of a witness whose attendance is requested by the prisoner. This suggestion was largely withdrawn in the course of argument and we do not think it had any validity. Those who appear before the board of visitors on charges are, ex hypothesi, those who are serving sentences in prison. Many such offenders might well seek to render the adjudications by the board quite impossible if they had the same liberty to conduct their own defences as they would have in an ordinary criminal trial. In our judgment the chairman's discretion is necessary as part of a proper procedure for dealing with alleged offences against discipline by prisoners.

However, that discretion has to be exercised reasonably, in good faith and on proper grounds. It would clearly be wrong if, as has been alleged in one instance before us, the basis for refusal to allow a prisoner to call witnesses was that the chairman considered that there was ample evidence against the accused. It would equally be an improper exercise of the discretion if the refusal was based upon an erroneous understanding of the prisoner's defence - that an alibi did not cover the material time or day, whereas in truth and in fact it did.

A more serious question was raised as to whether the discretion could be validly exercised where it was based upon considerable administrative inconvenience being caused if the request to call a witness or witnesses was permitted. Clearly in the proper exercise of his discretion a chairman may limit the number of witnesses, either on the basis that he has good reason for considering that the total number sought to be called is an attempt by the prisoner to render the hearing of the charge virtually impracticable or where quite simply it would be quite unnecessary to call so many witnesses to establish the point at issue. But mere administrative difficulties, simpliciter, are not in our view enough. Convenience and justice are often not on speaking terms: see per Lord Atkin in General Medical Council v. Spackman [1943] A.C. 627, 638.

At the outset of his submissions Mr. Campbell, on behalf of the board of visitors, urged that there was no obligation at all upon the board to allow any witnesses to be called. He said, and to this extent we accept his submission, that the written explanation of the procedure at adjudications by boards of visitors has no statutory force. He based his submission upon the bald proposition that although natural justice imposes an obligation to hear the party accused, it does not involve any obligation to hear any witnesses whom he wishes to call.

He based his submission essentially upon Lord Loreburn L.C.'s well-known speech in the House of Lords in Board of Education v. Rice [1911] A.C. 179, 182, where the following passage appears:

"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of

state the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."

Mr. Campbell relies upon, in particular, the phrase "need not examine any witnesses."

Lord Atkin in his speech in General Medical Council v. Spackman [1943] A.C. 627, 638, said in terms that he would demur to any suggestion that the words of Lord Loreburn L.C. offer a complete guide to the General Medical Council upon whom there was a statutory obligation to make "due inquiry" under section 29 of the Medical Act 1858 into an allegation of infamous conduct in a professional respect by a registered medical practitioner. He said: "... it is not correct that 'they need not examine witnesses.' They must examine witnesses if tendered, and their own rules rightly provide for this." Viscount Simon L.C. in his speech said, at p. 635:

"Unless Parliament otherwise enacts, the duty of considering the defence of a party accused, before pronouncing the accused to be rightly adjudged guilty, rests on any tribunal, whether strictly judicial or not, which is given the duty of investigating his behaviour and taking disciplinary action against him. The form in which this duty is discharged - e.g. whether by hearing evidence viva voce or otherwise - is for the rules of the tribunal to decide. What matters is that the accused should not be condemned without being first given a fair chance of exculpation."

In our view a fair chance of exculpation cannot in many cases be given without hearing the accused's witnesses, e.g. in a case of an alibi defence. Lord Wright in his speech initially observed that the obligation to comply with the rules of natural justice aptly described what the council had to do - to make "due inquiry." While accepting that "contrary to natural justice" is an expression "sadly lacking in precision" (see Hamilton L.J. in Rex v. Local Government Board, Ex parte Arlidge [1914] 1 K.B. 160, 199), he emphasised that the essential requirement was that the tribunal should be impartial and that the medical practitioner who is impugned should be given a full and fair opportunity of being heard. Later he stated, at p. 645, that the doctor proceeded against must be entitled to call evidence, either his own or that of other witnesses to controvert the charge. In commenting upon the council's rules (which had not been invoked in the case) which provided that the practitioner would be called upon to state his case and produce the evidence in support of it, he said,

at p. 646, in terms that the rules satisfied "the essential requirements of justice and fair play."

Mr. Campbell argues that General Medical Council v. Spackman [1943] A.C. 627 is in a special category of its own, because the very rules of the General Medical Council provided in terms as part of its procedure that the practitioner would be called upon by the president to state his case and produce the evidence in support of it. However, as we have already pointed out, the speech of Lord Wright makes it clear that these domestic rules were merely declaratory of the rules of natural justice.

It was in fact 25 years earlier, in De Verteuil v. Knaggs [1918] A.C. 557, 560, that the Privy Council stated:

"Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice."

These words were quoted with approval in the Privy Council in Ceylon University v. Fernando [1960] 1 W.L.R. 223. They imply, in our view, that the right to be heard will include, in appropriate cases, the right to call evidence. It would in our judgment be wrong to attempt an exhaustive definition as to what are appropriate cases, but they must include proceedings whose function is to establish the guilt or innocence of a person charged with serious misconduct. In the instant cases, what was being considered was alleged serious disciplinary offences, which, if established, could and did result in a very substantial loss of liberty. In such a situation it would be a mockery to say that an accused had been "given a proper opportunity of presenting his case" (section 47 (2) of the Prison Act 1952) or "a full opportunity ... of presenting his own case" (rule 49 (2)), if he had been denied the opportunity of calling evidence which was likely to assist in establishing the vital facts at issue.

For completeness we should deal with a further submission of Mr. Campbell, namely, that since in many of the decided cases there were frequent references to a domestic tribunal being the master of its own procedure, the rules of natural justice can have no relevance to matters of procedure. This, in our judgment, is a fundamental misconception. The rules of natural justice are a compendious reference to those rules of procedure which the common law requires persons who exercise quasi-judicial functions to observe: Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456, 487. Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances. For a long time the courts have without objection from Parliament supplemented procedure laid down in legislation where they have found that to be necessary for this purpose: see Wiseman v. Borneman [1971] A.C. 297 per Lord Reid at p. 308.

So much for the calling of witnesses. We now turn to the suggestion that hearsay evidence is not permissible in a hearing before a board of visitors. It is of course common ground that the board of visitors must base their decisions on evidence. But must such evidence be restricted to that which would be admissible in a criminal court of law? Viscount Simon L.C. in General Medical Council v. Spackman [1943] A.C. 627,

634, considered there was no such restriction. That was also clearly the view of the Privy Council in the Ceylon University v. Fernando [1960] 1 W.L.R. 223, 234. The matter was dealt with in more detail by Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456, 488:

"These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his."

However, it is clear that the entitlement of the Board to admit hearsay evidence is subject to the overriding obligation to provide the accused with a fair hearing. Depending upon the facts of the particular case and the nature of the hearsay evidence provided to the board, the obligation to give the accused a fair chance to exculpate himself, or a fair opportunity to controvert the charge - to quote the phrases used in the cases cited above - or a proper or full opportunity of presenting his case - to quote the language of section 47 or rule 49 - may oblige the board not only to inform the accused of the hearsay evidence but also to give the accused a sufficient opportunity to deal with that evidence. Again, depending upon the nature of that evidence and the particular circumstances of the case, a sufficient opportunity to deal with the hearsay evidence may well involve the cross-examination of the witness whose evidence is initially before the board in the form of hearsay.

We again take by way of example the case in which the defence is an alibi. The prisoner contends that he was not the man identified on the roof. He, the prisoner, was at the material time elsewhere. In short the prisoner has been mistakenly identified. The evidence of identification given by way of hearsay may be of the "fleeting glance" type as exemplified by the well-known case of Reg. v. Turnbull [1977] Q.B. 224. The prisoner may well wish to elicit by way of questions all manner of detail, e.g. the poorness of the light, the state of confusion, the brevity of the observation, the absence of any contemporaneous record, etc., all designed to show the unreliability of the witness. To deprive him of the opportunity of cross-examination would be tantamount to depriving him of a fair hearing.

We appreciate that there may well be occasions when the burden of calling the witness whose hearsay evidence is readily available may impose a near impossible burden upon the board. However, it has not been suggested that hearsay evidence should be resorted to in the total absence of any first-hand evidence. In the instant cases hearsay evidence was only resorted to to supplement the first-hand evidence and this is the usual practice. Accordingly where a prisoner desires to dispute the hearsay

evidence and for this purpose to question the witness, and where there are insuperable or very grave difficulties in arranging for his attendance, the board should refuse to admit that evidence, or, if it has already come to their notice, should expressly dismiss it from their consideration.

Our view that a fair hearing may well involve providing to the accused an opportunity to question the witness whose evidence is proffered in a hearsay form, is supported by the report of a Home Office Working Party on Adjudication Procedure in Prison published in 1975. It consisted of representative members of the boards of visitors, officers of the Prison Department and members of the Prison Service and their terms of reference were:

"To review the arrangements for the hearing by governors and boards of visitors of disciplinary charges against inmates of Prison Department establishments and to make recommendations."

In notes to paragraph 16 the following is stated: "Generally, hearsay evidence by the reporting officer should not be admitted unless it is supported by first-hand evidence." Then it deals with limited circumstances in which it may be appropriate, in particular the case of the accused prisoner pleading guilty. It then continues:

"If the reporting officer or other witness is not available to give evidence in person, the situation should be explained to the prisoner, and it should be left to him to decide whether the hearing should proceed with just the witness's written evidence, and in the knowledge that he would not be able to question the officer on his evidence; or whether the hearing should be postponed until the officer returns to duty, however long that may be e.g. an officer could be off duty sick for some time."

I now turn to consider the effects of those conclusions upon the individual applications which are before us. So far as the refusal to allow the applicants to call witnesses is concerned, this presents little difficulty, except in the case of Cotterill. All the other cases are covered by the statement in the affidavit of the chairman of the board to the following effect:

"Furthermore and in any event, we took the view that the calling of witnesses would be of limited value unless it was clear that the witnesses would be of real value in a specific case. If it had ever been apparent to us that it was essential to the course of justice that a witness be called, I would have allowed a prisoner to do so, if necessary by adjourning the adjudication."

Generally speaking, where there is a conflict of evidence as to a point on which the dispute turns, the court will decline to interfere: Rex v. Fulham, Hammersmith and Kensington Rent Tribunal, Ex parte Zerek [1951] 2 K.B. 1. Since we have had to decide this matter on affidavit evidence without the benefit of cross-examination, we are obliged to take the facts where they are in issue as they are deposed to on behalf of the board. By applying the test which the chairman describes, the board was acting with obvious fairness. No room for criticism in this aspect remains. In the case of Cotterill, however, it is clear from the record of the proceedings that the test was wrongly applied on the third charge against him. [His Lordship stated the facts on which a

misapprehension of the nature of the applicant s defence arose and continued:] The finding of guilt on this charge must be quashed.

There remains to consider the more difficult problem of what may for convenience be called the hearsay evidence. After the disturbances had subsided all the prison officers involved submitted written reports of their observations, naming such prisoners as they had seen taking part in the riot. A dossier was then prepared in respect of each prisoner so named, the dossier containing the reports of the various officers who said they had observed him. These dossiers were before the Governor of Hull Prison who was of course present at the hearings.

The governor explains in his affidavit, and it can be seen from the record of the proceedings, that from time to time, at the tacit or express invitation of the chairman, the governor would give to the board information which he derived from the dossiers. To take one example: the applicant Saxton faced a number of charges, one of which was under rule 47 (10), the particulars being that he had been seen on "A" wing roof filling bottles with floor polish. The suggestion was that these were to be used as incendiary bombs. Evidence was given by Officer Wooldridge that he had seen through binoculars Saxton and another man, Duffy, filling the bottles. Saxton said he knew nothing about it. The chairman asked him: "Are all the officers wrong?" whereupon the governor said: "6 out of 14 sightings say he was the first man onto the roof - others suggest it was Saxton who carried the bed to smash the windows to get on the roof." Then the chairman said "Case proven."

It is clear that no opportunity was given to the applicant to examine the evidence to which the governor was referring. He was not told the names of the officers who had allegedly seen him at the material time and place, or from what positions they had observed him. He was not given the opportunity, so far as one can ascertain, to make any comment on what the governor had said. It seems to us that this constituted a serious departure from the principle enunciated by Lord Denning in Kanda v. Government of Malaya [1962] A.C. 322 and the other cases already cited. The prisoner was not told what evidence had been given or what statements had been made affecting him, nor was he given a fair opportunity to correct or contradict them.

That the hearsay evidence carried weight with the board is clear from a passage in the record of the hearing of one of the charges against the applicant Anderson. It was a charge of looting on which he was found guilty. It is now conceded that there was no evidence on which a finding of guilt could properly have been based and that finding must be quashed. [His Lordship referred to the facts and continued:] It seems to us that in the way this hearsay evidence was handled there was a departure from the rules of fairness and that that departure could reasonably be regarded as having caused what Megaw L.J. describes as "a substantial, as distinct from a trivial or merely technical, injustice. ..."

We confess it is with some reluctance that we come to this conclusion, because there is inevitably a feeling that the board may have reached the right result ultimately in spite of the irregularities. These men were prisoners. Some of them were dangerous. Most of them were difficult. All of them were no doubt to some extent untrustworthy. But they faced (and received) severe punishment and they were entitled to a fuller hearing than that which they in fact received.

Lord Morris of Borth-y-Gest in Ridge v. Baldwin [1964] A.C. 40, 113-114, said:

"It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet: see Kanda v. Government of Malaya [1962] A.C. 322, 337. My Lords, here is something which is basic to our system: the importance of upholding it far transcends the significance of any particular case."

Lord Morris continued, at p. 126:

"My Lords, it was submitted to your Lordships that the decision of the watch committee should be upheld as having been the only reasonable decision. I consider this to be an entirely erroneous submission. Since no charges have been formulated it is impossible to assess their weight or the weight of the answering evidence of the appellant and others. When the appellant was in the witness-box in the present action he was questioned as to what witnesses he would have wished to call in order to deal with the 'Leach' and the 'Page' matters. As charges in respect of those matters were not formulated, I cannot think that it was appropriate to elicit the names of certain witnesses whom the appellant might have decided to call, and then without hearing or being able to hear such witnesses to seek to discount their value and effectiveness, and then to seek to draw a vague and artificial conclusion that if matters had been regularly done, and if the appellant had been heard, and if his witnesses had been heard, a result adverse to him would have followed. All the defects and all the unfairness of the original irregularity are inherent in any such approach."

It should be noted that in so far as we are quashing any findings of guilt for lack of procedural fairness, the charges remain capable of being the subject of a fresh investigation before a differently constituted board, should this be considered appropriate. There is no need to set out in detail how the hearsay evidence was adduced or handled in each case. [His Lordship then stated that three findings of guilt against the applicant Cotterill, two findings of guilt against the applicant Rajah, both findings of guilt against the applicant St. Germain, one finding of guilt against the applicant Anderson, four findings of guilt against the applicant Saxton and all five findings of guilt against the applicant Reed were quashed. His Lordship stated that the findings of guilt against the applicant Pike were not affected by any hearsay evidence and he then considered the application of Rosa, and stated that, in the circumstances, the Board of Visitors of Wandsworth Prison had adopted a fair course in admitting hearsay evidence and had given the applicant every opportunity to present his case.]

Solicitors: Gamlens for George E. Baker & Co., Guildford; Bindman & Partners; Neilson & Co.; Turner, Peacock; Hilary Kitchin; Sharpe, Pritchard & Co. for Philip Hamer & Co., Hull; Douglas-Mann & Co. for Patterson, Glenton & Stracey, South Shields.

[Reported by MRS. CLARE BARSBY, Barrister-at-Law]