R v Secretary of State for the Home Department, ex parte Simms

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWNE-WILKINSON, LORD STEYN, LORD HOFFMANN, LORD HOBHOUSE OF WOODBOROUGH, LORD MILLETT
Judgment Date08 Jul 1999

[1999] UKHL J0708-3

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Steyn

Lord Hoffmann

Lord Hobhouse of Wood-borough

Lord Millett

Regina
and
Secretary of State for the Home Department
(Respondent)
Ex Parte Simms (A.P.)
(Appellant)
Regina
and
Secretary of State for the Home Department
(Respondent)
Ex Parte O'Brien
(Appellant)
(Consolidated Appeals)
LORD BROWNE-WILKINSON

My Lords,

1

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons which he gives I would allow both the appeals and make the declarations which he proposes.

LORD STEYN

My Lords,

2

In the last fifteen years a number of miscarriages of justice have been exposed. I do not have in mind cases where in the ordinary process of appeal a wrong has been corrected. The term is apt where a conviction was at first upheld on appeal but subsequently, after the defendant had perhaps served years in prison, the case was re-opened and the conviction found to be unsafe. The risk of such miscarriages is ever present. On 18 May 1999 Mr. David Calvert-Smith Q.C., the Director of Public Prosecutions, found it necessary to issue a specific warning to prosecutors about the need to guard against such miscarriages taking place. He added that he "was concerned, and have been concerned for some time, that at present there is a significant number of cases in which the prosecution are not so complying (with the duty of disclosure.)" It has been demonstrated on the hearing of the present appeals that in recent years a substantial number of miscarriages of justice have only been identified and corrected as a result of painstaking investigation by journalists. And those investigations have included oral interviews with the prisoners in prison.

3

The Home Secretary contends that prisoners have no right to have oral interviews with journalists in aid of an attempt to gain access to the Court of Appeal (Criminal Division.) The policy of the Home Secretary is that such interviews would tend to undermine the discipline and control which are unquestionably essential conditions in a prison environment. On behalf of the appellants the consequentialist argument is that if the policy of the Home Secretary is upheld it will be virtually impossible for a journalist to take on a case which he believes to merit investigation.

4

The case in a nutshell

5

Two prisoners serving life sentences for murder had their separate applications for leave to appeal against conviction refused by the Court of Appeal (Criminal Division.) The men continued to protest their innocence. In order to obtain the reopening of their cases they wished to have oral interviews with journalists who had taken an interest in their cases. Relying on the policy of the Home Secretary the Governors of the prisons were only prepared to allow the oral interviews to take place if the journalists signed written undertakings not to publish any part of the interviews. The journalists refused to sign the undertakings. The prisoners sought judicial review of the decisions denying them the right to have oral interviews. They rely on the right to free speech not in a general way but restricted to a very specific context: they argue that only if they are allowed to have oral interviews in prison with the journalists will they be able to have the safety of their convictions further investigated and to put forward a case in the media for the reconsideration of their convictions. They seek to enlist the investigative services of journalists as a way to gaining access to justice by way of the reference of their cases to the Court of Appeal (Criminal Division). Since their appeals were dismissed neither prisoner has had access to legal services. Latham J. upheld their argument and held the policy of the Home Secretary to be unlawful. The Court of Appeal allowed an appeal by the Home Secretary and reversed the decision of Latham J. The Court of Appeal in effect ruled that a prisoner has no right to an oral interview (as opposed to correspondence) with a journalist who was willing to investigate his case and, if appropriate, to take up his case through the media: see Regina v. Secretary of State for the Home Secretary, Ex parte Simms [1999] Q.B. 349.

6

The restrictions on the rights of prisoners

7

A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus the prisoner's liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that "a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication": see Raymond v. Honey [1983] A.C. 1 at 10H; Reg. v. Secretary of State for the Home Department, Ex parte Leech [1994] Q.B. 198 at 209D. Rightly, Judge L.J. observed in the Court of Appeal in the present case that "the starting point is to assume that a civil right is preserved unless it has been expressly removed or its loss is an inevitable consequence of lawful detention in custody": [1999] Q.B. 349 at 367H.

8

Section 47(1) of the Prison Act 1952 enables the Home Secretary to make rules for, amongst other things, "the regulation and management of prisons … and for the … treatment, employment, discipline, and control of persons required to be detained therein." The power to make such rules is exercisable by statutory instrument: section 52(1) of the Act of 1952. Pursuant to section 47(1) there are, amongst others, rules which enable a prisoner to correspond with his legal advisers, and to have interviews with legal advisers in prison (paragraph 34 of section A of the Prison Service Standing Order 5.) The rules also make provision for a prisoner to correspond with a journalist: paragraph 34 of section B. But the provisions regulating an oral interview by a journalist (in section A) are in the following more restrictive terms:

"Visits by journalists or writers

"37. Visits to inmates by journalists or authors in their professional capacity should in general not be allowed and the governor has authority to refuse them without reference to headquarters. If a journalist or author who is a friend or relative wishes to visit an inmate in this capacity and not for professional purposes, the governor should inform the intending visitor that before the visit can take place he or she will be required to give a written undertaking that any material obtained at the interview will not be used for professional purposes and in particular for publication by the intending visitor or anyone else.

"37A. Where, exceptionally, a journalist or author is permitted to visit an inmate in his or her professional capacity, or is allowed general access to the establishment, he or she will be required to give a written undertaking that no inmate will be interviewed except with the express permission in each case of the governor and the inmate concerned, that interviews will be conducted in accordance with such other conditions as the governor considers necessary, and that any material obtained at the interview will not be used for professional purposes except as permitted by the governor. No inmate should be permitted to accept any payment or gratuity in return for an interview or for a radio or television appearance."

9

Paragraph 37(A) requires the express permission in each case of the governor and the inmate concerned. In the cases before the House the two prisoners wished to be interviewed in order to appeal to public opinion through the media. At stake are the rights of prisoners to be interviewed by journalists of the prisoners' choice. The case of Mr. Simms

10

On 14 March 1989 Mr. Simms was convicted of murder and sentenced to life imprisonment. On 8 October 1990 the Court of Appeal (Criminal Division) refused Mr. Simms' renewed application for leave to appeal. On 10 July 1991 the Home Secretary, having considered representations from Mr. Simms, declined to refer his case to the Court of Appeal (Criminal Division). In 1990 Mr. Simms wrote to Bob Woffinden, a journalist who specialises in the investigation of possible miscarriages of justice. They started to communicate by letters and visits. In late 1994 the Home Secretary became aware that Mr. Woffinden was visiting Mr. Simms. This led to the Governor of H.M.P. Full Sutton informing Mr. Woffinden that he could no longer visit Mr. Simms unless he signed an undertaking in accordance with paragraph 37 not to publish anything that passed between him and Mr. Simms during the visit. On 28 January 1995 Mr. Woffinden wrote an article about Mr. Simms' case which was published in the Independent Magazine. His theme was that no body was ever found and that the supposed victim may simply have disappeared. On 23 May 1995 the Governor of H.M.P. Full Sutton wrote to Mr. Woffinden and confirmed that he would have to sign the undertaking before a further visit could take place. On 28 June 1996 Mr. Simms commenced judicial review proceedings. Since then Mr. Simms has been moved to H.M.P. Long Lartin. The policy of the Home Secretary about oral interviews between prisoners and journalists has been maintained.

11

The case of Mr. O'Brien

12

On 20 July 1988 Mr. O'Brien was convicted of murder and robbery. On 16 March 1990 the Court of Appeal (Criminal Division) refused Mr. O'Brien's renewed application for leave to appeal. The Home Secretary refused his request to refer his case to the Court of Appeal (Criminal Division). In early 1995 Mr. O'Brien first received visits at H.M.P. Long Lartin from Karen Voisey, a journalist working for BBC Wales. She started investigating Mr. O'Brien's convictions. She interviewed O'Brien on eight occasions in 1995. Mr. O'Brien wanted Ms. Voisey to produce a television programme about his case. But by 19 December 1995,...

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