R (Daly) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL, LORD STEYN, LORD COOKE OF THORNDON, LORD HUTTON, LORD SCOTT OF FOSCOTE
Judgment Date23 May 2001
Neutral Citation[2001] UKHL 26

[2001] UKHL 26

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Steyn

Lord Cooke of Thorndon

Lord Hutton

Lord Scott of Foscote

Regina
and
Secretary of State for the Home Department, Ex Parte Daly
LORD BINGHAM OF CORNHILL

My Lords,

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:

"17.69 Staff must accompany all searches of living accommodation in closed prisons with a strip search of the resident prisoner.

17.70

Staff must not allow any prisoner to be present during a search of living accommodation (although this does not apply to accommodation fabric checks).

17.71

Staff must inform the prisoner as soon as practicable whenever objects or containers are removed from living accommodation for searching, and will be missing from the accommodation on the prisoner's return.

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 (eg 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."

2

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. But on this appeal to the House Mr Daly confines his challenge to a single aspect of the policy: the 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 origin of the policy

3

On 9 September 1994 six category A prisoners, classified as presenting an exceptional risk, escaped from the Special Security Unit at HMP Whitemoor. An inquiry led by Sir John Woodcock, formerly HM Chief Inspector of Constabulary, was at once set up. The report of the inquiry, presented to Parliament in December 1994 (Cm 2741), revealed extensive mismanagement and malpractice at Whitemoor. The escape had been possible only because prisoners had been able, undetected, to gather a mass of illicit property and equipment. This in turn had been possible because prisoners' cells and other areas had not been thoroughly searched at frequent but irregular intervals, partly because officers seeking to make such searches had been intimidated and obstructed by prisoners, partly because relations between officers and prisoners had in some instances become unacceptably familiar so that staff had been manipulated or "conditioned" into being less vigilant than they should have been in security matters.

4

In its report the inquiry team made a number of recommendations. One of these was that cells and property should be searched at frequent but irregular intervals. Following a strip search, each prisoner was to be excluded from his cell during the search, to avoid intimidation. The inquiry team gave no consideration at any stage to legal professional privilege or confidentiality. The policy was introduced to give effect to the inquiry team's recommendation on searching of cells.

The legal background

5

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 by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.

6

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.

8

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."

Campbell v United Kingdom (1992) 15 EHRR 137 concerned the compatibility with the European Convention of rule 74(4) of the Prison (Scotland) Rules 1952 (SI 1952/565) which provided that "every letter to or from a prisoner shall be read by the Governor … and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable." This rule had earlier been upheld as valid by the Court of Session: Leech v Secretary of State for Scotland, 1991 SLT 910. The European Court held that the interference with the applicant's correspondence violated article 8 of the Convention. At p 161, para 48 of its judgment, the court said:

"Admittedly, as the Government pointed out, the borderline between mail concerning contemplated litigation and that of a general nature is especially difficult to draw and correspondence with a lawyer may concern matters which have little or nothing to do with litigation. Nevertheless, the Court sees no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concern matters of a private and confidential character. In principle, such letters are privileged under Article 8.

This means that the prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, eg opening the letter in the presence of the prisoner. The reading of a prisoner's mail to and from a lawyer, on the other hand, should only be permitted in...

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