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Cite as: [2000] EWHC Admin 375

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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.
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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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