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Lord Bingham of Cornhill – 1. On 31 May 1995 the Home Secretary introduced a new policy
(‘the policy’) governing the searching of cells occupied by convicted and remand prisoners in
closed prisons in England and Wales. The policy was expressed in the Security Manual as an
instruction to prison governors in these terms:
“… 17.72 Subject to paragraph 17.73, staff may normally read legal correspondence only if
the Governor has reasonable cause to suspect that their contents endanger prison security, or
the safety of others, or are otherwise of a criminal nature. In this case the prisoner involved
shall be given the opportunity to be present and informed that their correspondence is to be
read.
17.73 But during a cell search, staff must examine legal correspondence thoroughly in the
absence of the prisoner. Staff must examine the correspondence only so far as necessary to
ensure that it is bona fide correspondence between the prisoner and a legal adviser and does
not conceal anything else.
17.74 When entering cells at other times (e.g. when undertaking accommodation fabric
checks) staff must take care not to read legal correspondence belonging to prisoners unless
the Governor has decided that the reasonable cause test in 17.72 applies.”
- Mr. Daly is a long term prisoner. He challenges the lawfulness of the policy. He submits
that section 47(1) of the Prison Act 1952, which empowers the Secretary of State to make
rules for the regulation of prisons and for the discipline and control of prisoners, does not
authorise the laying down and implementation of such a policy … requirement that a prisoner
may not be present when his legally privileged correspondence is examined by prison
officers. He contends that a blanket policy of requiring the absence of prisoners when their
legally privileged correspondence is examined infringes, to an unnecessary and impermissible
extent, a basic right recognised both at common law and under the European Convention for
the Protection of Human Rights and Fundamental Freedoms, and that the general terms of
section 47 authorise no such infringement, either expressly or impliedly.
The legal background - Any custodial order inevitably curtails the enjoyment, by the person confined, of rights
enjoyed by other citizens. He cannot move freely and choose his associates as they are
entitled to do. It is indeed an important objective of such an order to curtail such rights,
whether to punish him or to protect other members of the public or both. But the order does
not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights,
perhaps in an attenuated or qualified form, survive the making of the order. And it may well
be that the importance of such surviving rights is enhanced by the loss or partial loss of other
rights.
Among the rights which, in part at least, survive are three important rights, closely related but
free standing, each of them calling for appropriate legal protection: the right of access to a
court; the right of access to legal advice; and the right to communicate confidentially with a
legal adviser under the seal of legal professional privilege? Such rights may be curtailed only
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by clear and express words, and then only to the extent reasonably necessary to meet the ends
which justify the curtailment. - These propositions rest on a solid base of recent authority. In R v. Board of Visitors of Hull
Prison, Ex p St Germain [1979] QB 425, 455 Shaw LJ made plain that “despite the
deprivation of his general liberty, a prisoner remains invested with residuary rights
appertaining to the nature and conduct of his incarceration … An essential characteristic of the
right of a subject is that it carries with it a right of recourse to the courts unless some statute
decrees otherwise.” - Raymond v. Honey [1983] 1 AC 1 arose from the action of a prison governor who blocked
a prisoner’s application to a court. The House of Lords affirmed, at p 10, that “under English
law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not
taken away expressly or by necessary implication …”
Section 47 was held to be quite insufficient to authorise hindrance or interference with so
basic a right as that of access to a court. To the extent that rules were made fettering a
prisoner’s right of access to the courts and in particular his right to institute proceedings in
person they were ultra vires. - In R v. Secretary of State for the Home Department, Ex p Anderson [1984] QB 778 the
prisoner’s challenge was directed to a standing order which restricted visits by a legal adviser
to a prisoner contemplating proceedings concerning his treatment in prison when he had not
at the same time made any complaint to the prison authorities internally.
Reiterating the principle that a prisoner remains invested with all civil rights which are not
taken away expressly or by necessary implication, Robert Goff LJ, giving the judgment of the
Queen’s Bench Divisional Court, said, at p 790: “At the forefront of those civil rights is the
right of unimpeded access to the courts; and the right of access to a solicitor to obtain advice
and assistance with regard to the initiation of civil proceedings is inseparable from the right of
access to the courts themselves.”
The standing order in question was held to be ultra vires. At pp. 793-794 the court observed:
“As it seems to us, a requirement that an inmate should make … a complaint as a prerequisite
of his having access to his solicitor, however desirable it may be in the interests of good
administration, goes beyond the regulation of the circumstances in which such access may
take place, and does indeed constitute an impediment to his right of access to the civil court.” - … R v. Secretary of State for the Home Department, Ex p Leech [1994] QB 198 …
concerned rule 33(3) of the Prison Rules 1964 (SI 1964/388) [essentially, that letters to or
from prisoners should be read by the Governor and any letter could be stopped letter if the
contents were considered to be objectionable] … The decision is important for several
reasons.
First, it re-stated the principles that every citizen has a right of unimpeded access to the court,
that a prisoner’s unimpeded access to a solicitor for the purpose of receiving advice and
assistance in connection with a possible institution of proceedings in the courts forms an
inseparable part of the right of access to the courts themselves and that section 47(1) of the
1952 Act did not authorise the making of any rule which created an impediment to the free
flow of communication between a solicitor and a client about contemplated legal proceedings.
Legal professional privilege was described as an important auxiliary principle serving to
buttress the cardinal principles of unimpeded access to the court and to legal advice.
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Secondly, it was accepted that section 47(1) did not expressly authorise the making of a rule
such as rule 33(3), and the court observed, at p 212, that a fundamental right such as the
common law right to legal professional privilege would very rarely be held to be abolished by
necessary implication. But the court accepted that section 47(1) should be interpreted as
conferring power to make rules for the purpose of preventing escapes from prison,
maintaining order in prisons, detecting and preventing offences against the criminal law and
safeguarding national security. Rules could properly be made to permit the examining and
reading of correspondence passing between a prisoner and his solicitor in order to ascertain
whether it was in truth bona fide correspondence and to permit the stopping of letters which
failed such scrutiny.
The crucial question was whether rule 33(3) was drawn in terms wider than necessary to meet
the legitimate objectives of such a rule. As it was put, at p 212: “The question is whether there
is a self-evident and pressing need for an unrestricted power to read letters between a prisoner
and a solicitor and a power to stop such letters on the ground of … objectionability”
The court concluded that there was nothing which established objectively that there was a
need in the interests of the proper regulation of prisons for a rule of the width of rule 33(3).
While section 47(1) of the 1952 Act by necessary implication authorised some screening of
correspondence between a prisoner and a solicitor, such intrusion had to be the minimum
necessary to ensure that the correspondence was in truth bona fide legal correspondence:
since rule 33(3) created a substantial impediment to exercise by the prisoner of his right to
communicate in confidence with his solicitor the rule was drawn in terms which were
needlessly wide, and so was held to be ultra vires. - In the light of the decisions in Campbell and Leech, a new prison rule was made, now rule
39 of the Prison Rules 1999 (SI 1999/728). It provides, so far as material:
“(1) A prisoner may correspond with his legal adviser and any court and such correspondence
may only be opened, read or stopped by the governor in accordance with the provisions of
this rule.
“(2) Correspondence to which this rule applies may be opened if the governor has reasonable
cause to believe that it contains an illicit enclosure and any such enclosures shall be dealt with
in accordance with the other provision of these Rules.
“(3) Correspondence to which this rule applies may be opened, read and stopped if the
governor has reasonable cause to believe its contents endanger prison security or the safety of
others or are otherwise of a criminal nature.
“(4) A prisoner shall be given the opportunity to be present when any correspondence to
which this rule applies is opened and shall be informed if it or any enclosure is to be read or
stopped.”
This rule, it is accepted, applies only to correspondence in transit from prisoner to solicitor or
vice versa. The references to opening and stopping make plain that it has no application to
legal correspondence or copy correspondence received or made by a prisoner and kept by him
in his cell. - The Court of Appeal decision in Leech was endorsed and approved by the House of Lords
in R v. Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, which
arose from a prohibition on visits to serving prisoners by journalists seeking to investigate
whether the prisoners had, as they claimed, been wrongly convicted, save on terms which
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precluded the journalists from making professional use of the material obtained during such
visits. The House considered whether the Home Secretary’s evidence showed a pressing need
for a measure which restricted prisoners’ attempts to gain access to justice, and found none.
The more substantial the interference with fundamental rights, the more the court would
require by way of justification before it could be satisfied that the interference was reasonable
in a public law sense.
In this as in other cases there was applied the principle succinctly stated by Lord BrowneWilkinson in R v. Secretary of State for the Home Department, Ex p Pierson [1998] AC 539,
575: “… A power conferred by Parliament in general terms is not to be taken to authorise the
doing of acts by the donee of the power which adversely affect the legal rights of the citizen
or the basic principles on which the law of the United Kingdom is based, unless the statute
conferring the power makes it clear that such was the intention of Parliament.” - It is necessary, first, to ask whether the policy infringes in a significant way Mr. Daly’s
common law right that the confidentiality of privileged legal correspondence be maintained.
He submits that it does for two related reasons: first, because knowledge that such
correspondence may be looked at by prison officers in the absence of the prisoner inhibits the
prisoner’s willingness to communicate with his legal adviser in terms of unreserved candour;
and secondly, because there must be a risk, if the prisoner is not present, that the officers will
stray beyond their limited role in examining legal correspondence, particularly if, for instance,
they see some name or reference familiar to them, as would be the case if the prisoner were
bringing or contemplating bringing proceedings against officers in the prison … - I have no doubt that the policy infringes Mr. Daly’s common law right to legal
professional privilege. This was the view of two very experienced judges in R v. Governor of
Whitemoor Prison, Ex p Main [1999] QB 349, against which decision the present appeal is
effectively brought. At p 366 Kennedy LJ said: “In my judgment legal professional privilege
does attach to correspondence with legal advisers which is stored by a prisoner in his cell, and
accordingly such correspondence is to be protected from any unnecessary interference by
prison staff. Even if the correspondence is only inspected to see that it is what it purports to be
that is likely to impair the free flow of communication between a convicted or remand
prisoner on the one hand and his legal adviser on the other, and therefore it constitutes an
impairment of the privilege.”
Judge LJ was of the same opinion. At p 373, he said: “Prisoners whose cells are searched in
their absence will find it difficult to believe that their correspondence has been searched but
not read. The governor’s order will sometimes be disobeyed. Accordingly I am prepared to
accept the potential ‘chilling effect’ of such searches.”
In an imperfect world there will necessarily be occasions when prison officers will do more
than merely examine prisoners’ legal documents, and apprehension that they may do so is
bound to inhibit a prisoner’s willingness to communicate freely with his legal adviser. - The next question is whether there can be any ground for infringing in any way a
prisoner’s right to maintain the confidentiality of his privileged legal correspondence. Plainly
there can. Some examination may well be necessary to establish that privileged legal
correspondence is what it appears to be and is not a hiding place for illicit materials or
information prejudicial to security or good order.
132 - It is then necessary to ask whether, to the extent that it infringes a prisoner’s common law
right to privilege, the policy can be justified as a necessary and proper response to the
acknowledged need to maintain security, order and discipline in prisons and to prevent crime.
Mr. Daly’s challenge at this point is directed to the blanket nature of the policy, applicable as
it is to all prisoners of whatever category in all closed prisons in England and Wales,
irrespective of a prisoner’s past or present conduct and of any operational emergency or
urgent intelligence … - … [I]t must be recognised that the prison population includes a core of dangerous,
disruptive and manipulative prisoners, hostile to authority and ready to exploit for their own
advantage any concession granted to them. Any search policy must accommodate this
inescapable fact. I cannot however accept that the reasons put forward justify the policy in its
present blanket form. Any prisoner who attempts to intimidate or disrupt a search of his cell,
or whose past conduct shows that he is likely to do so, may properly be excluded even while
his privileged correspondence is examined so as to ensure the efficacy of the search, but no
justification is shown for routinely excluding all prisoners, whether intimidatory or disruptive
or not, while that part of the search is conducted … The policy cannot in my opinion be
justified in its present blanket form … I accept Mr. Daly’s submission on this point. - … Section 47(1) of the 1952 Act does not authorise such excessive intrusion, and the
Home Secretary accordingly had no power to lay down or implement the policy in its present
form. I would accordingly declare paragraphs 17.[72] to 17.74 of the Security Manual to be
unlawful and void in so far as they provide that prisoners must always be absent when
privileged legal correspondence held by them in their cells is examined by prison officers. - I have reached the conclusions so far expressed on an orthodox application of common
law principles derived from the authorities and an orthodox domestic approach to judicial
review. But the same result is achieved by reliance on the European Convention.
Article 8.1 gives Mr. Daly a right to respect for his correspondence. While interference with
that right by a public authority may be permitted if in accordance with the law and necessary
in a democratic society in the interests of national security, public safety, the prevention of
disorder or crime or for protection of the rights and freedoms of others, the policy interferes
with Mr Daly’s exercise of his right under article 8.1 to an extent much greater than necessity
requires. In this instance, therefore, the common law and the convention yield the same result
…
Now, following the incorporation of the convention by the Human Rights Act 1998 and the
bringing of that Act fully into force, domestic courts must themselves form a judgment
whether a convention right has been breached (conducting such inquiry as is necessary to
form that judgment) and, so far as permissible under the Act, grant an effective remedy. On
this aspect of the case, I agree with and adopt the observations of my noble and learned friend
Lord Steyn which I have had the opportunity of reading in draft.
Lord Steyn – - I am in complete agreement with the reasons given by Lord Bingham of Cornhill in his
speech. For the reasons he gives I would also allow the appeal. Except on one narrow but
important point I have nothing to add. - There was written and oral argument on the question whether certain observations of Lord
Phillips of Worth Matravers MR in R (Mahmood) v. Secretary of State for the Home
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Department [2001] 1 WLR 840 were correct. The context was an immigration case involving
a decision of the Secretary of State made before the Human Rights Act 1998 came into effect.
The Master of the Rolls nevertheless approached the case as if the Act had been in force when
the Secretary of State reached his decision. He explained the new approach to be adopted.
The Master of the Rolls concluded, at p 857, para 40: “When anxiously scrutinising an
executive decision that interferes with human rights, the court will ask the question, applying
an objective test, whether the decision-maker could reasonably have concluded that the
interference was necessary to achieve one or more of the legitimate aims recognised by the
Convention. When considering the test of necessity in the relevant context, the court must
take into account the European jurisprudence in accordance with section 2 of the 1998 Act.” - The explanation of the Master of the Rolls in the first sentence of the cited passage
requires clarification. It is couched in language reminiscent of the traditional Wednesbury
ground of review (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation
[1948] 1 KB 223), and in particular the adaptation of that test in terms of heightened scrutiny
in cases involving fundamental rights as formulated in R v. Ministry of Defence, Ex p Smith
[1996] QB 517, 554E-G per Sir Thomas Bingham MR. There is a material difference between
the Wednesbury and Smith grounds of review and the approach of proportionality applicable
in respect of review where convention rights are at stake. - The contours of the principle of proportionality are familiar. In de Freitas v. Permanent
Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy
Council adopted a three stage test.
Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or
decision) is arbitrary or excessive the court should ask itself: “whether: (i) the legislative
objective is sufficiently important to justify limiting a fundamental right; (ii) the measures
designed to meet the legislative objective are rationally connected to it; and (iii) the means
used to impair the right or freedom are no more than is necessary to accomplish the
objective.”
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of
review. What is the difference for the disposal of concrete cases? … The starting point is that
there is an overlap between the traditional grounds of review and the approach of
proportionality. Most cases would be decided in the same way whichever approach is
adopted. But the intensity of review is somewhat greater under the proportionality approach.
… I would mention three concrete differences without suggesting that my statement is
exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the
balance which the decision maker has struck, not merely whether it is within the range of
rational or reasonable decisions.
Secondly, the proportionality test may go further than the traditional grounds of review
inasmuch as it may require attention to be directed to the relative weight accorded to interests
and considerations.
Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith
[1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be
recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on
homosexuals in the army. The challenge based on article 8 of the Convention for the
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Protection of Human Rights and Fundamental Freedoms (the right to respect for private and
family life) foundered on the threshold required even by the anxious scrutiny test.
The European Court of Human Rights came to the opposite conclusion: Smith and Grady v
United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138: ‘the
threshold at which the High Court and the Court of Appeal could find the Ministry of Defence
policy irrational was placed so high that it effectively excluded any consideration by the
domestic courts of the question of whether the interference with the applicants’ rights
answered a pressing social need or was proportionate to the national security and public order
aims pursued, principles which lie at the heart of the court’s analysis of complaints under
article 8 of the Convention.’
In other words, the intensity of the review, in similar cases, is guaranteed by the twin
requirements that the limitation of the right was necessary in a democratic society, in the
sense of meeting a pressing social need, and the question whether the interference was really
proportionate to the legitimate aim being pursued. - The differences in approach between the traditional grounds of review and the
proportionality approach may therefore sometimes yield different results. It is therefore
important that cases involving convention rights must be analysed in the correct way. This
does not mean that there has been a shift to merits review. On the contrary … the respective
roles of judges and administrators are fundamentally distinct and will remain so. To this
extent the general tenor of the observations in Mahmood [2001] 1 WLR 840 are correct. And
Laws LJ rightly emphasised in Mahmood, at p 847, para 18, ‘that the intensity of review in a
public law case will depend on the subject matter in hand’. That is so even in cases involving
Convention rights. In law context is everything.
