Civil actions against prison governors, the Parole Board, Probation Trusts and the Secretary of State for Justice

In the context of prison law, decisions made by the following may impact upon individuals' lives in such a way that those affected may seek some form of civil remedy:

• Prison governors;
• The Parole Board;
• Probation Trusts (of which there are 35);
• The Secretary of State for Justice (who is responsible for the decisions of prison governors).

What remedies can a prisoner seek against these bodies?

An individual who has been affected by a decision, action or failure to act by a  public authority, such as those mentioned above, may make an application for "Judicial Review". Judicial Review is a procedure  which may provide a remedy to the individual if it is found that the authority in question acted unlawfully in some way.

Judicial Review procedure in the context of prison law will be discussed in more detail in a subsequent post.

How can a decision be unlawful?

There are four main ways in which a decision can be unlawful:

• If it is illegal, e.g if the body has made a decision it did not have the legal power to make;
• If it is unreasonable;
• If it is procedurally unfair;
• If there has been a breach of human rights.

Examples of issues which may give rise to claims against prison governors

• If the prison conducted an adjudication incorrectly.
• If the prison refuses to categorise the prisoner in a lower security category.
• If the prison refuses the prisoner access to his legal papers.
• If the prison refuses the prisoner access to offending behaviour courses.
• If the prison refuses to change the prisoner's status with regards to Incentives and Earned Privileges.

Examples of issues which may give rise to claims against the Parole Board

• If the Parole Board refuse to recommend release, and the decision making process which led them to that conclusion was conducted in an unlawful manner.
• If the Parole Board refuse to afford a prisoner an oral hearing.

Examples of issues which may give rise to claims against the Secretary of State for Justice

• If a prisoner has been classified as High or Exceptional Escape Risk.
• If a prisoner has been recalled to custody following release on licence.

When might an individual chose to apply for Judicial Review in respect of a decision?

If he has exhausted all avenues of appeal and there is no other remedy for him to pursue.

What are the limitations to Judicial Review?

The application must be brought as soon as possible, and in any event, within 3 months of the decision being made.

Judicial Review is not concerned with the merits of the decision itself. Judicial Review merely examines the way in which that decision was made.

Judicial Review is not an appeal. An appeal is a challenge to the outcome of a case or decision. A Judicial Review is a challenge as to how the decision was made (the decision making process itself).

What happens if an application for Judicial Review is successful?

If the court finds that the body has acted unlawfully, it may:

•     issue a mandatory order (an order requiring the body to do something);
•     issue a prohibiting order (an order preventing the body from doing something);
•     issue a quashing order (an order quashing the body's decision);
•     make a declaration;
•     award damages (compensation).

After the Judicial Review, the body may make exactly the same decision again, since Judicial Review is concerned with the decision making process rather than the decision itself. However, as the body's decision making process has been scrutinised, they are more likely to make a lawful decision the second time around.

Can I get compensation?

Perhaps, although it is rare. The court may think that one of the other remedies is more appropriate. If, however, an individual's human rights have been infringed, the court may be more likely to award damages.

Where do Judicial Reviews take place?

In the High Court.

I'm in prison: will I have to go to court if the Judicial Review goes to an oral hearing?

The initial stage in the Judicial Review procedure involves an "application." Applications for Judicial Reviews are conducted "on the papers." This means that your barrister will draft the legal argument for your Judicial Review on paper along with a statement of facts about your case. At this stage, oral hearings are not usually necessary. The judge will then decide whether or not to "grant permission." If permission is granted, the case then goes to a full hearing. A prisoner's attendance would not normally be required since Judicial Review is essentially legal argument rather than, for example, a criminal trial where witnesses are required to give evidence as to issues of fact. If, however, a prisoner would like to watch the hearing, he should ask his solicitor to look into the possibility of video link.

I'm in prison and I want to pursue a Judicial Review. What should I do?

If  a prisoner is thinking about applying for Judicial Review, he should seek legal advice from a solicitor who specialises within this field.