R (Nilsen) v Governor of HM Prison Long Sutton and another
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1540 |
| Date | 17 November 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2004/0320 |
[2004] EWCA Civ 1540
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MAURICE KAY J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Phillips of Worth Matravers, Mr
Lord Justice Kennedy and
Lord Justice Gage
Case No: C3/2004/0320
Alison Foster QC & Flo Krause (instructed by Tuckers, Solicitors) for the Appellant
Steven Kovats (instructed by Treasury Solicitor) for the Respondent
Lord Phillips, MR:
This is the judgment of the Court
The appellant, Dennis Nilsen, was sentenced in 1983 to six life sentences for six murders. He is subject to a whole life tariff. The murders were of homosexual partners. The details of the murders and of what Mr Nilsen did with and to the bodies are horrifying. These details he wishes to publish in an autobiography. Paragraph 34(c) of prison Standing Order 5 ('Paragraph 34') provides, subject to certain exceptions, that a prisoner's general correspondence may not contain material which is intended for publication, or which, if sent, would be likely to be published, if it is about an inmate's crime or past offences. The principal issue that arises on this appeal is whether Paragraph 34 is lawful having regard to a prisoner's right to freedom of expression under Article 10 of the European Convention on Human Rights ('Article 10').
This issue arises in an unusual way. Mr Nilsen began to write his autobiography in 1992. By 1996 his work amounted to 400 closely typed pages. These he handed to the solicitor who was then acting for him at HMP Whitemoor, with a view to its publication. His solicitor took it with him when he left the prison. There is no need to explore what then happened to the transcript save to say that a number of copies were made of it which are still outside the confines of the prison.
Mr Nilsen is currently imprisoned at HMP Full Sutton. His present solicitor wishes to return his typescript to him and he wishes to receive it in order to do further work on it in order to prepare it for publication. The Secretary of State has decided that it should be withheld from him and the Governor of the prison has refused to permit him to receive it. In these proceedings Mr Nilsen challenges the legality of the Secretary of State's decision. The Secretary of State has relied upon Paragraph 34. We doubt whether the material part of Paragraph 34 was intended to cover correspondence sent to rather than from a prisoner. All parties have, however, proceeded on the basis that Paragraph 34 relates to correspondence that is sent both to and from a prisoner and we shall proceed on that basis.
Mr Nilsen brought proceedings for judicial review of the Secretary of State's decision. They came before Maurice Kay J. Mr Nilsen argued that Paragraph 34 was unlawful. He further argued that the application of Paragraph 34 on the facts of this case was disproportionate and infringed Article 10. In a judgment delivered on 19 December 2003 Maurice Kay J rejected these submissions and dismissed Mr Nilsen's application. It is against that judgment that Mr Nilsen appeals.
Statutory provisions and Standing Orders
The Prison Act 1952 vested in the Secretary of State all existing powers exercisable in relation to prisoners, whether under statute, common law or charter. It granted the Secretary of State power to do all acts necessary for the maintenance of prisons and prisoners – see sections 1 and 4. Section 47 provides:
" Rules for the management of prisons, remand centres, detention centres and Borstal institutions
(1) The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein."
Pursuant to his powers, the Secretary of State has, by Statutory Instruments made Prison Rules. The Prison Rules 1999, as amended by the Prison (Amendment) (No. 2) Rules 2000 provide:
" Privileges
8. (1) There shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there, which shall include arrangements under which money earned by prisoners in prison may be spent by them within the prison."
"34. (1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed-
(a) does not interfere with the convention rights of any person; or
(b)
(i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the convention right to be interfered with; and;
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are-
(a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the judiciary; or
(h) the protection of the rights and freedoms of any persons."
Rule 35 confers on prisoners express rights in relation to sending and receiving letters. Rule 43 places restrictions on the right of a prisoner to enjoy the use of his property while in prison. Rule 44 deals with money and articles received by post. In particular, it provides:
"Any other article to which this rule applies shall, at the discretion of the governor, be -
(a) delivered to the prisoner or placed with his property at the prison;
(b) returned to the sender; …"
Rule 70 provides:
"No person shall, without authority, convey into or throw into or deposit in a prison, or convey or throw out of a prison, or convey to a prisoner, or deposit in any place with intent that it shall come into the possession of a prisoner, any money, clothing, food, drink, tobacco, letter, paper, book, tool, controlled drug, firearm, explosive, weapon or other article whatever. Anything so conveyed, thrown or deposited may be confiscated by the governor."
Standing Orders are published, not under any express statutory authority, but by way of administrative direction or guidance under powers conferred on the Secretary of State that include those to which we have referred above.
"Paragraph 34 is headed "restrictions on general correspondence". It provides:
"General correspondence … may not contain the following:
…
(9) Material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it …
(c) is about the inmate's crime or past offences or those of others, except where it consists of serious representations about conviction or sentence or forms part of serious comment about crime, the processes of justice or the penal system…"
Paragraph 40 of Standing Order 5B states that letters containing prohibited material are liable to be stopped and makes provision for the disposal of such material.
The decision under challenge
The decision under challenge was communicated to Mr Nilsen's solicitors in a letter from the Governor dated 23 October 2002. It gave detailed reasons, as follows:
"The Prison Service has now read the manuscript … It has decided not to allow the manuscript to be passed to Mr Nilsen and because of this I am returning the manuscript to you.
The Prison Service considers that the manuscript is material intended for publication, that it is about Mr Nilsen's offences and that it does not consist of serious representations about a conviction or sentence and does not form part of serious comment about crime, the processes of justice or the penal system. Mr Nilsen is not permitted to send such material out of prison: Standing Order 5 section B paragraph 34(9) (c) ; Standing Order 4, paragraph 40. Because the manuscript has been out of prison for a number of years, it is likely that copies have been made by third parties. However, to date Mr Nilsen has not caused the manuscript to be published and has indicated that he wishes to do further work on it. The Secretary of State has no reason to believe that any such further work would alter the character of the manuscript.
The only way in which the Secretary of State can in practice realistically seek to prevent Mr Nilsen from publishing such material is by withholding the manuscript from Mr Nilsen pursuant to rules 34 and/or 70 of the Prison Rules …and/or paragraph 40 of Standing Order 5B.
The reasons why the Secretary of State has concluded that publication of the manuscript, or of a revised version of it, would be contrary to paragraph 34(9) (c) …are as follows.
The manuscript is about Mr Nilsen. But it is also about his offences: the offences themselves, how Mr Nilsen came to commit them, and how he is now being punished for them. The offences are an integral part of the manuscript.
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