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McClaren v.

Home Office
Court of Appeal, CA (Civ Div)
Dillon, Woolf and McCowan L.JJ.
Dillon L.J.
17 March. The following judgments were handed down.
The plaintiff in this action, Mr. McLaren, who is a prison officer, appeals by leave of
the judge against an order of Hoffmann J. of 12 May 1989 [1989] I.C.R. 550 whereby it
was ordered that the plaintiff's statement of claim be struck out and the action be
dismissed with costs. The defendant in the action, respondent to the appeal, is the Home
Office, which is -- if I can use the term without begging the question in issue -- the
plaintiff's employer.
The judge made his order because he took the view that the relationship between the
plaintiff and the Home Office was a matter of public law and not of private law, and
there was no arguable case that a relationship between the Home Office and the plaintiff
in private law came into existence at any material time. Consequently, if the plaintiff had
any claim against the Home Office, it was a claim which ought to be raised by way of an
application for judicial review under R.S.C., Ord. 53, and not by an action in the
Chancery Division.
The main point argued before the judge, as in this court, was whether there ever was
any contract, and in particular any contract of service, between the plaintiff and the
Home Office. The plaintiff argued that there was, and the Home Office that there was
not. The judge held that there was no contract and in so holding he followed the
judgments of a Divisional Court (May L.J. and Roch J) in Reg. v. Civil Service Appeal
Board, Ex parte Bruce [1988] I.C.R. 649 *829 . The irony of that is that in Ex parte
Bruce it was the Crown which was arguing that there was a contract between the civil
servant and the employing department. Having succeeded in the Divisional Court in Ex
parte Bruce on other grounds, the Crown was unable to appeal against the decision of
the Divisional Court. Mr. Bruce did appeal, but his appeal [1989] I.C.R. 171 was
dismissed on other grounds, and this court therefore did not find it appropriate to allow
the Crown to argue that the Divisional Court had been wrong to hold that there was no
contract between a civil servant and the employing department, since a decision on that
was not necessary for the disposal of the appeal in this court. The Crown has
consequently reverted to its traditional view before Ex parte Bruce that there is no
contract between a Crown servant and the employing department or the Crown.
Since O'sReilly v. Mackman [1983] 2 A.C. 237 it has been well known and well
established that it is, as a general rule
"contrary to public policy, and as such an abuse of the process of the court, to permit a
person seeking to establish that a decision of a public authority infringed rights to which
he was entitled to protection under public law to proceed by way of an ordinary action
and by this means to evade the provisions of Order 53 ...": see per Lord Diplock in
O'sReilly v. Mackman, at p. 285.
The advantages, if the matter is viewed objectively, of proceeding in the Divisional
Court under Order 53 where the claim is founded on alleged infringement by a public
authority of rights under public law are obvious. In the first place an application for
judicial review under Order 53 can only be made if leave to move has been granted by a

judge. In the second place the remedy is discretionary. In the third place, though some
actions can be brought very speedily to trial, it is probable that an application for judicial
review will be heard more speedily than an action for a declaration and ancillary relief.
There are however unfortunately some cases where it is not immediately clear
whether the rights which the plaintiff claims and which he claims have been infringed by
a public authority, are truly to be classified as rights under public law or rights under
private law, or to put it another way, where it is not immediately clear whether or not
there is a sufficient "public element," to use the phrase used by Sir John Donaldson M.R.
in Reg. v. Panel on Take-overs and Mergers, Ex parte Datafin Plc. [1987] Q.B. 815, 838.
In such cases the result often is, as here, the expenditure of a lot of time and costs in
determining whether the proceedings have been properly brought by an ordinary action
or, as the case may be, by an application for judicial review. Only a few days before we
heard the argument on the present appeal, we in this division of this court, in Reg. v.
Derbyshire County Council, Ex parte Noble [1990] I.C.R. 808, upheld a decision of a
Divisional Court that a claim by a deputy police surgeon over the termination of his
engagement was properly to be characterised as a claim in private law, and not public
law, because it related to a private contract for services between the surgeon and the
relevant county council as police authority.
*830 It is of course clear that a claim by a prison officer against the Home Office
may raise issues which are matters of public law properly to be decided by an
application for judicial review, whether or not a prison officer is employed under a
contract of service. An instance is Reg. v. Secretary of State for the Home Department,
Ex parte Attard, The Times, 14 March 1990, which we have also heard in the week
before we heard argument on the present appeal. There Mrs. Attard, a prison officer, had
been suspended without pay after certain charges had been laid against her under the
code of discipline for prison officers as a result of incidents in the course of a dispute
between her union and the Home Office over manning levels in part of Holloway Prison.
The question, which is clearly one of public law, was whether the code of discipline for
prison officers, made under the Prison Rules 1964 (S.I. 1964 No. 388) which have
statutory force, was comprehensive in itself or could be supplemented by the Home
Office by invoking a power of suspension in a different disciplinary context for civil
servants generally.
Conversely it is equally clear that an ordinary action for damages can be brought
against the Home Office in the ordinary courts, even if the claim is founded on
negligence by prison officers: see Ellis v. Home Office [1953] 2 Q.B. 135, where the
claim for damages for personal injury was brought by a former prisoner alleging
negligent mismanagement by the Home Office of the prison in which he had been
confined. See also the well known case of Dorset Yacht Co. Ltd. v. Home Office [1970]
A.C. 1004 where the Home Office accepted that it would be vicariously liable if there
had been negligence on the part of the borstal officers charged with the care of certain
borstal boys who had escaped and damaged the plaintiff's property.
It is therefore necessary to look at the facts of the present case to see whether the
plaintiff's claims raise matters of public or private law.
The plaintiff was offered an appointment as an unestablished prison officer by a
letter from the Home Office of 24 August 1978. The letter told him that if he was willing
to accept employment on the basis of the terms contained in the letter and an attached
schedule he would be required to sign a copy of the appointment letter when reporting
for prison officer training. He duly accepted the appointment, reported for and
underwent prison officer training as requested, and signed a copy of the letter.

The letter of appointment is a two-page letter. the schedule attached, of which he

received a copy with the letter, runs to eight pages. That is not all, however, as the letter
itself stated that details of conditions of service applicable to civil servants were to be
found in the Staff Rules Handbook, a copy of which would be handed to the plaintiff at
the training school, and the attached schedule stated that complete details of conditions
of service applicable to prison officers were contained not only in the Staff Rules
Handbook but also in something referred to as "Manual 1." It is common ground that in
fact by the time of the plaintiff's appointment "Manual 1." was obsolete, and had been
replaced by the Civil Service Pay and Conditions of Service Code ("the Civil Service
Code") which is also referred to in the Staff Rules Handbook. It has thus been common
ground on the hearing of this appeal that the plaintiff's terms of service on his original
appointment are to be distilled from the totality of the letter of *831 appointment and
attached schedule, the Staff Rules Handbook and the Civil Service Code.
Fortunately it is not necessary to set out much of that material in this judgment. It is
sufficient to record the following. The letter of appointment states:
"The following paragraphs and the schedule attached to this letter summarise your main
conditions of service as they apply at present. Any significant changes will be notified
by means of notices to staff."
the schedule contains in paragraph 1 the following sub-paragraph:
"In accordance with your letter of appointment you have been appointed as a prison
officer in the Home Department. You will understand that, in consequence of the
constitutional position of the Crown, the Crown has the right to change its employee's
conditions of service at any time, and the Crown's employee hold their appointments at
the pleasure of the Crown and cannot therefore demand a period of notice as of right
when their appointments are terminated. But in practice, provided an officer gives
satisfactory service, an established appointment in the Civil Service is not normally
terminated before he reaches retiring age. When it is terminated a period of notice will
normally be given as specified in paragraph 13." Paragraph 13 provides for minimum
periods of notice, according to length of service, save of course in the event of dismissal
on disciplinary grounds. But it provides alternatively for payment of salary in lieu of
The plaintiff accepts that, whether his original appointment was contractual or not,
the Home Office had power to terminate his appointment at will and to change his terms
and conditions of service at any time albeit, of course, not retrospectively. The power to
change the terms and conditions of service was expressly reserved in the schedule
attached to the letter of appointment.
There are additionally certain provisions of the Civil Service Code, in relation to the
conditions of service of civil servants, to which it is necessary to refer, in particular
paragraphs 11 and 14 which provide:
"11. The Civil Service has evolved under the Royal Prerogative and, except as regards
superannuation, does not rest on a codified statutory basis. In legal theory, all civil
servants form part of the personal staff of the Sovereign and it is still true to say that on
appointment civil servants, as servants of the Crown, hold office during the pleasure of
the Crown ...
"14. For the most part, the relationship between the civil servant and the Crown remains
one regulated under the prerogative and based on personal appointment. As such, a civil
servant does not have a contract of employment enforceable in the courts but rather a
letter of appointment, and technically the Crown still retains the right to dismiss a civil
servant at pleasure. Recently, however, the legal position of civil servants has been

radically changed by the growing trend for legislation to apply to the Civil Service either
directly, by the provisions of the Acts themselves or by Governmental assurances *832
that the conditions applying to civil servants will not be less favourable than those
applying to other employees."
The Civil Service Code was made, and is amended from time to time, under powers
conferred by successive Orders in Council of which the latest is the Civil Service Order
in Council 1982. Previous such Orders had been made in 1969 and 1978. These
successive Civil Service Orders in Council were made by exercise of the Royal
Prerogative, and not in pursuance of any statutory authority. The general tradition had
always been that servants of the Crown, including civil servants, are appointed under the
Royal Prerogative, and, that being so, the constitutional theory, many times stated and
approved, as for instance by Diplock J. in Riordan v. War Office [1959] 1 W.L.R. 1046,
1053- 1054, has been that
"'the Crown's absolute power of dismissal can only be restricted by statute, and anything,
short of a statute, which purports to restrict it, is void as contrary to public policy."'
However prison officers are not appointed under the Royal Prerogative; they are
appointed under statutory powers conferred on the Secretary of State by section 3 of the
Prison Act 1952 as amended. Under the Act of 1952 in its original form the power to
appoint prison officers was conferred on the prison commissioners who were by section
2 of the Act (repealed on the dissolution of the prison commissioners in 1963)
constituted a body corporate -- as had been the position under the Prison Act 1877. A
statutory corporation, such as a nationalised industry or a health authority or for that
matter a local authority, has, I apprehend, power to enter into a contractual relationship
by a contract of service with any officer or staff whom it may engage, and in relation to
prison officers the Home Office must be in the same position; the exercise of a statutory
power to appoint staff is free from restrictions inherent in an exercise of the prerogative.
There is, however, the separate question, with which the Divisional Court was
particularly concerned in Reg. v. Civil Service Appeal Board, Ex parte Bruce [1988]
I.C.R. 649, whether a contract of service had actually been made. The view taken by the
Divisional Court -- and it may be observed that Mr. Bruce was not a prison officer and
the Divisional Court was not concerned with statutory powers -- was that because of the
constitutional position and because also of paragraphs 11 and 14 of the Civil Service
Code the Crown had never had any intention to enter into any contractual relationship
with Mr. Bruce, and so there never was any contract of service.
That reasoning may or may not be valid in the present case also, despite the
differences between the positions of Mr. Bruce and the plaintiff. That is a question for
the trial of the action, which it would not be appropriate for this court to decide at this
early stage. But the question whether a public body, having power to enter into a
contract of service with a particular individual, has or has not done so in a particular case
must necessarily be a question of private, and not of public, law. The function
discharged by prison officers is of course of great importance to the public, but so is that
of doctors or nursing staff under the National Health Service, and their appointments are
a matter of private law: Reg. v. East Berkshire Health Authority, Ex parte Walsh [1984]
I.C.R. 743.
*833 Whether or not the plaintiff's original appointment in 1978 was contractual is a
very important issue in the plaintiff's case but it is not the whole case, and the original
appointment is important merely as the background to the real issue.
The plaintiff completed his training as a prison officer and was confirmed as an
established prison officer on the same terms of engagement. He was appointed to

Wandsworth Prison as a prison officer. In 1987 there were negotiations between the
Prison Department of the Home Office and the Prison Officers's Association which
culminated in an offer by the Home Office in March 1987 which is known as "Fresh
Start." The Prison Officers's Association held a ballot of its members on the Fresh Start
proposals, and the proposals were approved by a majority on the ballot. The Fresh Start
proposals included a provision that overtime working would cease and officers could
choose on an individual basis whether to work only "conditioned" hours (39 net per
week) for basic pay or to work nine additional "contracted" hours per week. There was a
"Statement of Agreed Principles for Fresh Start Proposals" which set out the aims, and
there was an annex headed "Application of Agreed Principles for Fresh Start Proposals."
This envisaged local agreements. Paragraph 2 stated:
"Governors and local Prison Officers's Association branches should seek to reach
agreements about how the principles set out in the Statement and this document can best
be reflected in local shift systems and working practices. ..."
Paragraph 4 then provided:
"Agreements should be honoured by both parties. Staff should only be asked to act
contrary to the terms of an agreement in a clear operational emergency when events
make it necessary for the governor to call in the majority of available staff to meet a
threat. If either party wishes to revise an agreement, every attempt should be made
through the normal processes of local discussion to agree a suitable revision. When it is
clear that no agreement can be reached in this way, the Cubbon formula should be
initiated. The Statement of Agreed Principles and this jointly agreed document will be
applied in the Cubbon formula process in the event of a failure to reach agreement
between the parties locally." The Cubbon formula there referred to was a formula for a
local disputes procedure which was agreed between the Home Office and the Prison
Officers's Association and is set out in a letter from Sir Brian Cubbon, of the Home
Office, to the general secretary of the Prison Officers's Association.
As envisaged in the annex just mentioned there was a local agreement, of 3 June
1988, between the local branch of the Prison Officers's Association at Wandsworth
Prison and the governor. This set out, inter alia, agreed shift times, limitations on shifts
and provisions for shift conversions. Unfortunately in early 1989 there was a dispute at
Wandsworth Prison between the local branch of the association and the governor. The
union claimed that the governor was imposing a new shift system in breach of the local
agreement and in defiance of the Cubbon formula. Prison officers *834 who, like the
plaintiff, were not prepared to work the new shifts -- though willing to work the old
shifts -- were sent home and were not paid for the days they had not worked.
The present action has therefore been started by the plaintiff with the support of the
Prison Officers's Association and he claims that the Fresh Start agreement between the
Prison Officers's Association and the Home Office and the local agreement, including
the Cubbon formula, have become incorporated in his contract, or alternatively
conditions of service. He seeks relief by way of declarations to that effect, and payment
of the amounts of salary withheld.
It is trite law that an "agreement" made in the course of collective bargaining
between a trade union and an employer, or an employers's association, does not normally
constitute a binding contract between those parties and is not made by the trade union as
agent for its members. Therefore the terms of the collective agreement are not, by the
mere making of such an agreement, made terms of the individual contracts of
employment of the individual employees at the premises in question. But a contract of
employment may be so worded as to incorporate the terms of a particular collective

bargain between the union and the employer, or to incorporate the terms of collective
bargains as from time to time agreed: see e.g.Robertson v. British Gas Corporation
[1983] I.C.R. 351.
In the present case there was no such incorporation in the plaintiff's original terms of
appointment of 1978. Even though some of the conditions set out in the schedule
attached to the letter of appointment may have been agreed to by the Home Office as a
result of collective bargaining with the Prison Officers's Association, even that is not
mentioned. Therefore to succeed the plaintiff must somehow establish that the Fresh
Start agreement, local agreement and Cubbon formula have at some subsequent stage,
presumably in 1987 or 1988, come to be incorporated in a contract of service between
him and the Home Office. He has to establish some contractual agreement to that effect,
in order to override the initial provision of his appointment (or contract) that the Home
Office could change his conditions of service at will.
As at present advised, I feel that the plaintiff will have considerable difficulty in
establishing this, even if he can show that, as envisaged in the Fresh Start proposals, he
and every other prison officer at Wandsworth elected either to work an "average
conditioned week" of 39 hours, or to work an "average conditioned week" of 39 hours
and to contract to work an additional nine hours per week. However, whether it is easy
or difficult for the plaintiff to establish this, the question whether the terms of a
collective bargain between a trade union and an employer have become terms of an
employee's contract of employment is, in my judgment, essentially a matter of private
law and not of public law. If the matter is one of private law, the action is not to be
struck out merely because it seems that the plaintiff may face evidential difficulties.
The foregoing are the main issues with which this case is concerned. There is
however a further point taken by the Home Office which is relied on as showing that this
case is essentially one of public law. This arises from section 8 of the Prison Act 1952
which provides: *835
"Every prison officer while acting as such shall have all the powers, authority, protection
and privileges of a constable."
Each prison officer also makes a declaration, as did the plaintiff on 11 October 1978,
whereby he promised in the presence of a witness:
"I will faithfully serve our Sovereign Lady the Queen as a prison officer and ... I will
obey the rules of the service, will carry out all orders lawfully given me, and will
discharge all the duties of a prison officer faithfully according to law."
This declaration has resemblances to, though it is not the same as, the attestation of a
constable; also it is not made so formally as the attestation.
Section 8 had its antecedent in the same terms in section 10 of the Prison Act 1898
and under that it was held in Pointing v. Wilson [1927] 1 K.B. 382 that a prisoner who
assaulted a prison officer in the course of the latter's duties was liable to the penalties for
an asault on a constable. In addition, because of section 8 it was held in Home Office v.
Robinson [1982] I.C.R. 31 that a prison officer could not make a claim for unfair
dismissal to an industrial tribunal, because under section 146(2) of the Employment
Protection (Consolidation) Act 1978 the relevant provisions of that Act do not apply to
"employment under a contract of employment in police service or to persons engaged in
such employment" and "police service" is defined as including service in any capacity
"by virtue of which a person has the powers or privileges of a constable." There are
other special provisions in the Act of 1978 relating to persons in Crown employment.
I cannot however for my part see anything in the status of a prison officer under
section 8 as a person having the powers, authority, protection and privileges of a

constable which goes to show that a prison officer cannot be employed under a contract
of service. Therefore that status does not bear on the issues we have to decide on this
appeal, and in particular does not indicate that the issues which arise in this action are
issues of public rather than private law. In my view the issues are issues of private law.
Other points were argued during the hearing of the appeal, which on the view I take
it is not necessary to mention.
For the reasons given, I would allow this appeal, set aside the order of the judge, and
leave this action to proceed.
Woolf L.J.
I agree that this appeal should be allowed. As this means that the plaintiff's action
will now have to proceed to trial, in the ordinary circumstances I would not give a
separate judgment from that of Dillon L.J. However, this appeal and the appeal which
was heard recently by this court in Reg. v. Derbyshire County Council, Ex parte Noble,
[1990] I.C.R. 808 suggest that problems are being experienced as to when proceedings
have to be taken by way of judicial review by employees -- I use that term in a wide
sense to include those who hold office under the Crown or on behalf of other public
bodies -- who wish to bring proceedings against their employer who is a public body.
The problem appears to be due to a misunderstanding as to the effect of the decision of
the House of Lords in O'sReilly v. Mackman [1983] 2 A.C. 237 on such proceedings.
*836 There are two issues on this appeal. (1) Is the plaintiff required to bring his
claim against the Home Office by way of judicial review? (2) If he is not required to
bring his proceedings by way of judicial review has he a reasonable cause of action or
was his claim correctly struck out as being clearly unsustainable?
The first issue
In resolving this issue the following principles have to be borne in mind.
(1) In relation to his personal claims against an employer, an employee of a public
body is normally in exactly the same situation as other employees. If he has a cause of
action and he wishes to assert or establish his rights in relation to his employment he can
bring proceedings for damages, a declaration or an injunction (except in relation to the
Crown) in the High Court or the county court in the ordinary way. The fact that a person
is employed by the Crown may limit his rights against the Crown but otherwise his
position is very much the same as any other employee. However, he may, instead of
having an ordinary master and servant relationship with the Crown, hold office under the
Crown and may have been appointed to that office as a result of the Crown exercising a
prerogative power or, as in this case, a statutory power. If he holds such an appointment
then it will almost invariably be terminable at will and may be subject to other
limitations, but whatever rights the employee has will be enforceable normally by an
ordinary action. Not only will it not be necessary for him to seek relief by way of
judicial review, it will normally be inappropriate for him to do so: see Kodeeswaran v.
Attorney-General of Ceylon [1970] A.C. 1111; Reg. v. East Berkshire Health Authority,
Ex parte Walsh [1984] I.C.R. 743 and Reg. v. Derbyshire County Council, Ex parte
(2) There can however be situations where an employee of a public body can seek
judicial review and obtain a remedy which would not be available to an employee in the
private sector. This will arise where there exists some disciplinary or other body

established under the prerogative or by statute to which the employer or the employee is
entitled or required to refer disputes affecting their relationship. The procedure of
judicial review can then be appropriate because it has always been part of the role of the
court in public law proceedings to supervise inferior tribunals and the court in reviewing
disciplinary proceedings is performing a similar role. As long as the "tribunal" or other
body has a sufficient public law element, which it almost invariably will have if the
employer is the Crown, and it is not domestic or wholly informal, its proceedings and
determination can be an appropriate subject for judicial review. An example is provided
here by the decision of the Divisional Court in Reg. v. Civil Service Appeal Board, Ex
parte Bruce [1988] I.C.R. 649. If there had not been available the more effective
alternative remedy before an industrial tribunal, the Divisional Court would have
regarded the decision of the Civil Service Appeal Board in that case as reviewable upon
judicial review. The decision of this court which has just been given in Reg. v. Secretary
of State for the Home Department, Ex parte Attard, The Times, 14 March 1990 is
another example of the same situation. There what was being considered by this *837
court were the powers of a prison governor in connection with disciplinary proceedings
in respect of prison officers. The prison governor's disciplinary powers in relation to
prisoners are reviewable only on judicial review (see Leech v. Deputy Governor of
Parkhurst Prison [1988] A.C. 533) and they can also be reviewed on judicial review
where they affect a prison officer on the application of that officer.
(3) In addition if an employee of the Crown or other public body is adversely
affected by a decision of general application by his employer, but he contends that that
decision is flawed on what I loosely describe asWednesbury grounds (Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223), he can
be entitled to challenge that decision by way of judicial review. Within this category
comes Council of Civil Service Unions v. Minister for the Civil Service [1985] I.C.R.
14. In the House of Lords there was no dispute as to whether the case was appropriately
brought by way of judicial review. The House of Lords assumed that it was and I would
respectfully suggest that they were right to do so. The decision under challenge was one
affecting employees at GCHQ generally. The action which was being challenged was the
instruction by the Minister for the Civil Service in the interests of national security to
vary the terms and conditions of service of the staff so that they would no longer be
permitted to belong to trade unions. Although the decision affected individual members
of the staff, It was a decision which was taken as a matter of policy, not in relation to a
particular member of staff, but in relation to staff in general and so it could be the
subject of judicial review.
(4) There can be situations where although there are disciplinary procedures which
are applicable they are of a purely domestic nature and therefore, albeit that their
decisions might affect the public, the process of judicial review will not be available.
However this does not mean that a particular employee who is adversely affected by
those disciplinary proceedings will not have a remedy. The existence of the disciplinary
proceedings may be highly material to indicate that the category of employee concerned,
unlike an ordinary employee, is not limited to a claim for damages but can in the
appropriate circumstances in an ordinary action seek a declaration or an injunction to
ensure that the proceedings are conducted fairly. (As to dismissal see Ridge v. Baldwin
[1964] A.C. 40, 65, per Lord Reid; Law v. National Greyhound Racing Club Ltd. [1983]
1 W.L.R. 1302 and Reg. v. British Broadcasting Corporation, Ex parte Lavelle [1983]
I.C.R. 99.)

In giving his judgment in this case, Hoffmann J. [1989] I.C.R. 550, 554, was of the
view that there was no "arguable distinction between the facts of this case and those of
Mr. Bruce" -- referring to Reg. v. Civil Service Appeal Board, Ex parte Bruce [1988]
I.C.R. 649. -- I disagree. In this case, unlike Ex parte Bruce, which falls within the
second category, the plaintiff is not making any complaint about disciplinary
proceedings. He is seeking declarations as to the terms of his employment and a sum
which he alleges is due for services rendered. If those claims have any merit they fall
within the first category set out above. They are private law claims which require private
rights to support them. Mr. Tabachnik firmly disavowed any suggestion that any public
law claim is being advanced by *838 the plaintiff. Whether or not he is an employee of
the Crown or has a contract of service, or holds an office under the Crown, he is entitled
to bring private law proceedings if he has reasonable grounds for contending that his
private law rights have been infringed. As his claim is pleaded and advanced by Mr.
Tabachnik, it is entirely unsuited to judicial review. Unlike continental jurisidictions in
which there is a Conseil d'sEtat, claims of the kind which are made by the plaintiff have
to be brought by ordinary civil proceedings unless they are subsidiary to other public
law claims, in which case it may be possible for them now to be disposed of in the same
proceedings on an application for judicial review. The first issue must therefore be
resolved in favour of the plaintiff.
The second issue
In Reg. v. East Berkshire Health Authority, Ex parte Walsh [1984] I.C.R. 743 the
applicant was contending that he was entitled to proceed by way of an application for
judicial review because the district nursing officer by whom he was dismissed had no
power to dismiss him and there had been a breach of the rules of natural justice.
However, if he was right in his contentions there had been a breach of his contract of
employment, and while this could have been the subject of ordinary civil proceedings, it
was not an appropriate subject of an application for an order of certiorari. The appeal of
the health authority from the decision of Hodgson J. that judicial review was the correct
procedure was therefore allowed.
Shortly thereafter Hodgson J. decided Reg. v. Secretary of State for the Home
Department, Ex parte Benwell [1984] I.C.R. 723. In that case a prison officer had made
an application for judicial review in relation to a decision to dismiss him following
disciplinary proceedings which, inter alia, went before the Civil Service Appeal Board.
Hodgson J. concluded that the proceedings had been appropriately brought by way of
judicial review and that there had been a departure from the code of discipline and a
breach of the rules of natural justice and accordingly quashed the decision According to
the note of counsel's argument on behalf of the Secretary of State, [1985] Q.B. 554, it
was accepted that if the code had not been complied with the decision could be set aside
in public law proceedings but if the code had been complied with any challenge was a
private law matter. On this basis the decision of Hodgson J. clearly falls within the
second category to which I have referred and an application for judicial review was
appropriate. However in seeking to distinguish Ex parte Walsh, in his judgment Hodgson
J. said [1984] I.C.R. 723, 739:
"because of his status of constable, a prison officer cannot resort to the industrial
tribunals under the Employment Protection (Consolidation) Act 1978: see Home Office
v. Robinson [1982] I.C.R. 31. Save to the extent that Parliament has by statute provided

a Crown servant with some special entitlement, he is dismissible at pleasure and has no
private law remedy."
That statement by Hodgson J. is only acceptable in the context of the issues which were
before him. It cannot be appropriately applied to the present case.
*839 While Mr. Tabachnik accepts that the plaintiff can be dismissed at pleasure
because he holds an office or is employed by the Crown, this does not mean that he
cannot have a private law right in relation to matters other than his dismissal. The fact
that a prison officer can be dismissed at pleasure does not mean that there do not exist
other terms as to his service which are contractually enforceable and in respect of which
he can have a private law remedy. There is now a considerable number of dicta which
indicate that it is possible for a servant of the Crown to have contractual rights. It is not
necessary for me to refer to these authorities because they are all set out in Reg. v. Civil
Service Appeal Board, Ex parte Bruce [1988] I.C.R. 649 and a number of them have
already been referred to by Dillon L.J. In Ex parte Bruce itself Roch J. recognised that
there could be terms of the appointment of a civil servant which could have legal effect.
If there are such terms then they would give rise to private rights. In the case of prison
officers they would result from the exercise by the Home Office of its statutory powers
which are incidental to its statutory power to appoint prison officers; but even if they
were derived from the prerogative, this would not alter the nature of the rights created,
only the source of the authority for creating the rights.
Once it is conceded, as in my view it has to be, that there is at least an arguable case
for contending that the relationship between prison officers and the Home Office could
have a contractual element, then (subject to it not affecting the power of the Crown to
dismiss) the extent and the effect of the contractual element is a matter to be determined
after evidence and full argument at the hearing.
Although the task with which the plaintiff is faced, as Dillon L.J. has pointed out, is
the difficult one of establishing that Fresh Start is incorporated into his terms of service,
even in the absence of any express agreement to this effect, the task is by no means
impossible. It is to be borne in mind that Fresh Start has been incorporated de facto into
the plaintiff's terms of service and the issue at the trial will be limited to ascertaining
whether it has been incorporated de jure as well.
In relation to Mr. Griffiths's argument based on section 8 of the Prison Act 1952, I
recognise that the position of a constable under English law is exceptional for historical
reasons. His powers, whether conferred by common law or by statute, are excercised by
him by virtue of his office and (unless he is acting in execution of a warrant lawfully
issued) can only be exercised on his own responsibility: see Halsbury's Laws of
England, 4th ed., vol. 36 (1981), para. 203, pp. 109-110. As Viscount Simonds said in
Attorney-General for New South Wales v. Perpetual Trustee Co. Ltd. [1955] A.C. 457,
"His authority is original, not delegated, and is exercised at his own discretion by
virtue of his office: he is a ministerial officer exercising statutory rights independently of
Although there are similarities between the position of a constable and a prison
officer, and a prison officer may be regarded as holding an office, that office differs from
that of a constable. While the prison officer makes the declaration referred to by Dillon
L.J. on taking office, he is appointed by the Secretary of State and section 8 of the Prison
Act 1952 only provides: *840 "Every prison officer while acting as such shall have all
the power, authority, protection and privileges of constable."

Therefore he is not a police constable although he has the powers, etc., of a constable
while acting as a prison officer. His status is not the same as that of a police constable,
and although Hodgson J. was correct to say in Reg. v. Secretary of State for the Home
Department, Ex parte Benwell [1984] I.C.R. 723, 739, that "a prison officer cannot
resort to the industrial tribunals under the Employment Protection (Consolidation) Act
1978" this was because the combined effect of sections 54 and 146 of that Act excluded
from its provisions service "by virtue of which a person has the powers or privileges of a
constable." This was the reason that Browne-Wilkinson J. in Home Office v. Robinson
[1982] I.C.R. 31, 32, said:
"if the applicant" -- who was a prison officer -- "in this case is in employment under
a contract of employment ... his statutory right to complain is excluded by section
It follows therefore that in accord with the views expressed by Dillon L.J. I have
come to the conclusion that the plaintiff has a reasonable cause of action and the civil
proceedings which he has commenced cannot be regarded as an abuse of the process of
the court and should not have been struck out.
McCowan L.J.
For the reasons given by Dillon and Woolf L.JJ. I also would allow this appeal.