Traditionally, prisoners have rarely sought legal advice.

They have tended to be unaware that legal remedies exist for prison matters and, in addition, their advisers have lacked detailed knowledge of the penal system.The result is that many people forgo the right to advice and representation.

However, a number of high profile cases have raised awareness among prisoners that legal remedies exist and many are seeking specialist advice and representation.

The major problem is a shortfall in the number of lawyers who feel able to take on such work.The past year has seen two important judgments regarding judicial review applications by prisoners.

These cases underline the possibility for practitioners who are already familiar with applications for judicial review to use their skills for the benefit of such clients.The majority of complaints made by prisoners relate to operational and managerial decisions made in respect of them, such as location and security categorisation.

Many of these decisions are discretionary in nature and do not originate from rights conferred upon prisoners (for example, there is no right to be located in a particular prison).In any event, even where decisions are made which infringe 'rights' (such as interference with the right to confidential legal correspondence - prison rule 37A) there is no clear remedy as it is established law that prisoners do not have a right to bring actions for breach of statutory duty (see R v Deputy Governor of Parkhurst Prison, ex p.

Hague [1992] 1 AC 58).

In most cases, the only recourse that exists is to bring an applicati on for judicial review of the decision made.The framework of the prison system is difficult for practitioners to penetrate as the only primary statute is the Prison Act 1952.

The Act provides for the home secretary to make rules and regulations for the management of prisons (s.47) and it is pursuant to this section that the Prison Rules 1964 were introduced.Everyday details of prison life are filled in by the standing orders and, more recently, advice and instructions to governors, which provide the basis for many of the administrative and operational decisions made affecting prisoners.

The standing orders are available to prisoners in the prison library and practitioners may obtain copies from the Home Office.Prisoners may make applications and appeal decisions made in respect of them through the request/ complaint procedure.

This system formalised the previous more arbitrary processes and enables prisoners to make applications on any subject to the prison governor.If prisoners are unhappy with the answer received, they can appeal this to the area manager on the same forms.

Generally, this is the only remedy available to prisoners and if the matter cannot be resolved in this manner there is no further internal appeal procedure to be taken before judicial review proceedings can be commenced.While each case must be considered on its own facts, it is arguable that the three-month time limit for commencing proceedings begins when the decision is reviewed by the area manager.

The much delayed appointment of the prison ombudsman may introduce a further avenue of complaint, but this should not interfere with the jurisdiction of the Divisional Court to oversee the request/complaint system of decision making.It has long been established that decisions made by prison governors of a quasi-judicial nature are amenable to judicial review (R v Board of Visitors, ex p.

St Germain [1979] QB 425).

The case of Hague established that operational and managerial decisions are similarly subject to the jurisdiction of the Divisional Court.

This judgment did not, however, lead to the expected flood of applications as the information on which to base ord 53 proceedings was not easily available.In Hague, the court accepted that governors have a wide discretion in their decision making, particularly when dealing with disciplinary matters.

As disputes on the factual evidence are not of interest to the court, and in any event are likely to be resolved in favour of the prison staff, some evidence is generally required of the procedural elements of a decision to provide sufficient material on which to commence proceedings.The recent case heard by the House of Lords, R v Secretary of State for the Home Department, ex p.

Doody [1993] 3 WLR 154, which was closely followed by that of R v Secretary of State for the Home Department, ex p.

Duggan [1993] The Times, 17 December, looked at the degree of openness which should be implemented in the decision-making process.These cases have profound implications for the legitimate expectations prisoners have to be informed of the reasons for decisions made in respect of them.Doody was an action brought by several prisoners serving mandatory life sentences.

The applicants sought the right to know the information placed before the home secretary when fixing tariffs.Prisoners serving life have two elements to their sentence.

The first is supposed to take account of the need for deterrence and retribution and is known as the tariff.

The second is the post-tariff stage and relates to the risk that the ind ividual poses to society or the security of the state.

(The home secretary recently introduced a third aspect to this assessment: 'The need to maintain public confidence.') The tariff is fixed by the home secretary after receiving recommendations from the trial judge and the Lord Chief Justice as to the minimum period a lifer should serve.It has always been accepted that prisoners have the right to make representations as to the length of their tariff.

This was, however, a somewhat pointless exercise in the absence of information as to how the tariff was fixed.The home secretary had no obligation to reveal the length of tariff and the first indication the prisoner had of this period was when his or her case was reviewed by the local review committee, a process which usually began three years before the tariff expired.

A full analysis of the practical implications of the judgment on those serving mandatory life sentences may be found in the article by Gregory Treverton Jones (see [1993] Gazette, 1 December, 23).Lord Mustill commented in his judgment that this could not be considered a true tariff: 'At least no tariff exposed to public view that might give a prisoner an idea of what to expect.'He went on to say: 'To mount an effective attack on the decision given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray.'The ruling in Doody means mandatory existing life sentence prisoners are entitled to be informed of the length at which the tariff has been fixed and the newly convicted may make representations on the judicial recommendations before it is fixed.

However, the judgment has far wider ranging consequences for both prisoners and for all litigants in ord 53 proceedings.Lord Mustill supported the contention that there is no general duty to give reasons for administrative decisions (see R v Universities Funding Council, ex p.

Institute of Dental Surgery [1993] Independent, 28 September).He identified six principles for openness in decision making, the first of these being that there is a presumption that administrative powers will be exercised fairly.

He looked at the changing nature of administrative decisions and concluded with the two principles that: 'Fairness will very often require that a person who may be adversely affected by the decision will have the opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.'Since the person affected usually cannot make representations without knowing what factors may weigh against his interests, fairness will very often dictate that he is informed of the gist of the case which he has to answer.'The judgment was closely followed by that of Duggan, which highlighted the far-reaching consequences.

This concerned the right of high-security prisoners to know of the reasons for their security classification.The Home Office had always stated that it had no duty to reveal such information as it related to security matters and disclosure would be harmful to the public interest.

Consequently many prisoners spent a large part of their sentences in high-security conditions with no opportunity to challenge the decision-making process effectively.

As well as significantly affecting their conditions of imprisonment, this denied them the opportunity to be released on parole or life licence.In his judgment, Lord Justice Rose, having been freed from previous authority (see Payne v Home Office, 2 May 1977, unreported) was able to approve his own views expressed in the case of R v Secretary of State for the Home Department, ex p.

Creamer and Scholey, 21 October 1993, unreported.He commented: 'A prisoner's right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies are, or should be, anathema in a civilised, democratic society.'He opined that, despite the very serious security implications involved, the principles put forward in Doody placed a duty of fairness on the secretary of state to disclose the gist of reasons for categorisation.In practical terms, the effects of these judgments are already apparent when advising prisoners.

An example is to be found in parole decisions, one of the largest single sources of discontent among prisoners.

This is a system which, despite its relating directly to release, has been secretive - leading to a perception of arbitrariness and unfairness in the decision-making process.Following the Criminal Justice Act 1991, the Prison Service implemented a policy whereby prisoners would be entitled to see their parole dossiers and to receive the reasons for parole refusal as from October 1994.

In light of the Doody judgment, this has now effectively been brought forward and advisers should be able to obtain parole dossiers on behalf of their clients in all cases where parole has been refused.It is arguable that Doody has significantly extended the onus on the prison service to be accountable to prisoners in reaching decisions.

There are very few decisions, particularly those of a disciplinary nature, which do not have an effect on the prisoner's ultimate release prospects, either directly or indirectly.It is very common for prisoners to be faced with disciplinary allegations which do not lead to formal charges but which remain on their records throughout their sentence.

This has significant knock-on effects in terms of re-classification to a lower security status, transfer to an open prison and, ultimately, parole prospects.It is usual for precise details of such allegations to be withheld on the grounds that disclosure would compromise the safety of other inmates or prison security.

The principles established in Doody would appear to make such reasoning unfair in that it denies the opportunity to the person who is adversely affected by the decision to make effective representations.It is worthwhile for all lawyers who have criminal clients to familiarise themselves with these judgments and the basic rules of prison procedure.

This will both enhance the reputation of a practice among its clientele and develop a caseload which is both rewarding and remunerative.