It is the ‘proper exercise of their discretion’ which is of most relevance to John and James. They must enquire into the procedures followed in reaching the decision, or if there is a blanket policy in place that simply bans representation in such circumstances. Webster identified the factors that must be taken into account by a board of visitors in exercising their discretion regarding legal representation in the group of cases, which included Tarrant29. From the six factors specified a number could potentially apply to John and James.
The seriousness of the charge and its possible penalty are a definite area that John and James need to ensure was taken into account. Although we are not informed of the penalties that could be enforced, it is safe to assume that they are serious. This is due to the nature of the charges, which are analogous to criminal ones. The liberty of the prisoners is therefore possibly at stake, as they could face lengthened sentences. Two further, linked areas that Webster states must be considered in the use of discretion, is the capacity of John and James to present their own case, and whether any points of law are likely to arise.
The high probability of the latter would make the former less probable. This would result in legal representation being necessary. The pair would also face ‘procedural difficulties, particularly in locating witnesses, if they are segregated from other prisoners whilst awaiting the hearing. The effect of the HRA does not appear to benefit prisoners in their claims for representation during disciplinary hearings. This conclusion can be drawn from Carroll30, in which case legal representation was not permitted, as breaches of prison rules were not found to be criminal proceedings, as specified in Article 6.
Lord Woolf commented at p62 “… we find no reason to regard the proceeding as other than fair. The deputy controller was entitled to come to the conclusion that there was no need for legal representation” if John and James were unsuccessful internally in their request for representation the most productive route to pursue would therefore be to approach the court. They could attempt to have the courts ensure that the prison authorities have used their discretion in an appropriate manner. If the prison governors were found not to have kept within procedural guidelines, the matter would have to be approached anew.
4. In Tony’s situation, established principles of tort law, their standing subsequent to the HRA, and the position of both within public law must be considered. The general test used to determine whether there is liability from one party to another, first incorporates the duty of care, which means the claimant must be owed a duty from the defendant for them to act carefully, which gives rise to damages. The test used today is that emanating from Caparo v Dickman31. There must be reasonable foreseeability of the event, proximity in time and space between the parties, and it must be fair and just to impose a duty.
Taking each of these in turn, Tony’s case seems strong, particularly regarding the first two issues. The prisoner who slashed Tony’s face was known to be violent, so the act could therefore be said to be reasonably foreseeable, the proximity of the relationship between a prisoner and the prison authority is obviously undeniably close and indispensable. A prisoner must be able to reasonably assume a certain level of protection from other prisoners. The most difficult aspect of the Caparo test for Tony to fulfil is that of it being fair, just and reasonable to impose liability.
Policy considerations have in the past resulted in blanket immunities from certain tort actions being given to public bodies, as occurred in Hill32 and Osman v Ferguson33. The general approach advocated by Lord Browne-Wilkinson in X v Bedfordshire34 was that it must first be considered whether the authority has acted within the powers granted to it by statute, in the matter that is being claimed against. If the decision of the body is found to be intra vires, the action must stop there, as “the local authority cannot be liable in damages for doing that which parliament has authorised.
35” However, if the conduct occurs as a result of an ultra vires decision, the Caparo criteria must then be applied. In Tony’s case it is unclear if the act of being left without adequate supervision would be ultra or intra vires. There is no information stating whether the level of required supervision is governed by statute, and it is likely that it is a matter left to the prison authorities discretion. It is inferable that the prisoners are not supposed to be left without adequate supervision, particularly violent ones, simply due to the very nature of prisons.
Another option for Tony to pursue would be to use the approach in Barrett v Enfield36, ere the distinction between policy and operational matters was made. The decision in Barrett was said to be operational in nature, and therefore it was justiciable for the claimants’ case to proceed. This is an avenue worth exploring for Tony, as the decision to move staff to another part of the prison and leave the part Tony was in unsupervised would have been reactionary, and made quickly, which arguably would have made the matter operational.
If this was determined as being the case, the criteria of it being fair and just to impose a duty can be fully considered. It is unfortunate for Tony that the European Court of Human Rights reconsidered its ruling in Osman,37 in which they said blanket immunity for the police was in breach of Article 6 of the European Convention of Human Rights (ECHR). Article 6 states that everyone is entitled to a hearing by a tribunal. In Z v UK38 the court rectified its position, stating
“the court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. ” The old case of Ellis39 with circumstances similar to Tony’s, rejected the claim of a prisoner, not due to immunity, but because the damage was not foreseeable as there was no previous record of violence from the prisoner. Tony has a good chance of being successful in a claim for damages, as the Caparo requirements appear to have been met.
Cases Padfield v Minister of Agriculture, Fisheries and Food,  A. C. 997 R v Higher Education Funding Council ex parte Institute of Dental Surgery  1 W. L. R. 242 R v Ministry of Defence ex parte Murray  C. O. D. 134 R v Parole Board, ex parte Wilson  Q. B. 740 R v Secretary of State for the Home Department, ex parte Doody  1 A. C. 531 R v Secretary of State for the Home Department, ex parte Cunningham  4 ALL E. R. 310