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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date04 Dec 1997
Judgment citation (vLex)[1997] EWCA Civ J1204-7
Docket Number97/0252/D, 97/0316/D & 97/1041/D

[1997] EWCA Civ J1204-7





Royal Courts of Justice


London WC2


Lord Justice Kennedy

Lord Justice Judge


Lord Justice Chadwick

97/0252/D, 97/0316/D & 97/1041/D

(1) Simm's Application for Judicial Review
(2) O'brien's Application for Judicial Review
(3) Main's Application For Judicial Review

MR K PARKER QC and MR S KOVATS (Instructed by Messrs Bindman & Partners, Kings Cross) appeared on behalf of the Applicants Simm and O'Brien

MR T OWEN and MISS P KAUFMAN (Instructed by Treasury Solicitors) appeared on behalf of the Respondent

MR T OWEN (Instructed by Messts Atter Mackenzie, Evesham) appeared on behalf of the Applicant Main

MR K PARKER QC and MR S KOVATS appeared on behalf of the Respondent


1. Introduction


Simms and O'Brien are two convicted prisoners each serving long sentences, and each still protesting his innocence. For a time each was being visited by a journalist, in the case of Simms it was a freelance journalist Robert Woffinden, and in the case of O'Brien it was Karen Voisey of BBC Wales. When the prison authorities discovered the occupation of the visitors they made it clear that the visits could only continue if the journalists signed an undertaking that any material obtained during the visit would not be used for professional purposes, and in particular for publication by the journalist or any one else. Each journalist refused to sign, so further visits were not allowed. Each prisoner then commenced proceedings for judicial review of what he described as "the continuing decision" of the Home Secretary that he may only receive visits from the journalist if the journalist has signed the undertaking. The applications for judicial review were heard together before Latham J who, on the 19th December 1996, found for the applicants and gave leave to appeal to this court.


Main is also a convicted prisoner who is serving a substantial sentence of imprisonment. As a result of recommendations made in the Woodcock Report after the escape from Whitemoor Prison it came the practice for prisoners to be removed from their cells and strip-searched. Then in their absence their cells would be thoroughly searched. The search would extend to correspondence, including correspondence with lawyers, which would be examined to see that it was what it purported to be. Main objected to the examination of such correspondence and applied for judicial review of "the continuing decision of the governor of HMP Whitemoor to authorise prison staff to search in his absence the applicant's confidential legal correspondence covered by rule 37A of the Prison Rules 1964." The application was heard by the Divisional Court (Pill LJ, Latham and Astill JJ) and on 16th May 1997 it was dismissed.


We heard the appeals one after the other because in each case the decision under challenge was taken in accordance with Prison Standing Orders, or a governor's order, which reflected policy at national level. It follows that the decision can only be impugned if either the Standing Order or the governor's order in question is shown to have been made ultra vires, or the decision itself was unreasonable in a Wednesbury sense. There is therefore raised in each case the issue as to what should be the court's approach to problems of this kind, but having indicated why the appeals were heard sequentially I propose to return to deal first with the appeal of Simms and O'Brien. That involves looking in each case a little more closely at the facts before turning to the law and the Standing Orders.


2. Facts of Simms and O'Brien


In 1988 Simms was convicted of murdering Helen McCourt. He sought leave to appeal, but leave was refused by the Court of Appeal Criminal Division on 8th October 1990. In that year he wrote to Robert Woffinden, a journalist who had done work connected with miscarriages of justice, and Woffinden began to visit him in prison. In 1995 Woffinden wrote a newspaper article about Simms' case and tried to get a television documentary commissioned. According to both Woffinden and Simms they became close friends, and Woffinden says that Simms writes long letters to him about once a week, but it is clear that much of what has passed between them was and is concerned with Simms' attempts to establish that he was wrongly convicted.


In August 1994 a Member of Parliament, who represented the constituency in which Helen McCourt's mother lived, wrote to the Home Secretary to ask what was going on, and in particular if Woffinden had been given permission to make a documentary about Helen McCourt's murder. If so, was the object to establish Simms' innocence, were the prison authorities co-operating, and did Woffinden have unlimited access to Simms? There were other questions raised which are not material for present purposes. The MP's letter clearly caused enquiries to be made by the Prison Service which revealed that Woffinden had visited Simms at HMP Full Sutton on three occasions using the limited number of statutory visiting orders issued to prisoners for family and social visits. Woffinden had not sought permission to visit Full Sutton as a journalist, and he was advised that if he wished to visit again as a friend he must sign a written undertaking in accordance with paragraph 37 of Prison Service Standing Order number 5, section A. Standing Order 5 deals with communications, and section A with visits. Paragraph 37 is one of two paragraphs which appear under the heading "Visits by journalists or writers" and it reads:—

"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."


Mr Woffinden has so far refused to give the undertaking.


The facts in the case of O'Brien have many similarities, but there is one important distinction. O'Brien was convicted of murder and robbery at Cardiff Crown Court on 20th July 1988, and his application for leave to appeal was refused by the Court of Appeal Criminal Division on 16th march 1990. He too protests his innocence, and he made contact with Karen Voisey of BBC Wales. She visited him at HMP Long Lartin on 22nd November 1995, but on 19th December 1995 when she went to the prison again, O'Brien having applied for a visiting order for her as his friend, she was told that unless she signed an undertaking identical to that which was sought from Woffinden the visit could not proceed. The form of undertaking is with the papers and it reads:—

"I……….visiting inmate no…….name……..hereby undertake that any material obtained during the visit will not be used for professional purposes, and in particular for publication by me or anyone else."


Karen Voisey refused to sign so the visit did not proceed. The significant difference between the case of Simms and that of O'Brien is that in his affidavit O'Brien does not claim that Karen Voisey ever became his friend, even though that was the implication when he applied for a visiting order, hence the request to her to sign the undertaking envisaged by paragraph 37 of Standing Order 5 section A. She, like Woffinden, has never sought admission to Long Lartin as a journalist. Had she done so the relevant paragraph of Standing Order 5 section A would have been paragraph 37A which provides:—

"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 exchange for an interview or for a radio or television appearance."


Both Simms and O'Brien have remained free to correspond with Woffinden and Voisey, subject to the constraints of Standing Order 5, section B, which deals with correspondence. Paragraph 34 of that section, so far as material, provides:—

"General correspondence, as defined in paragraph 33(1) 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 inmates own crime or past offences or those of others, except where it consists of serious representation about conviction or sentence or forms part of serious comment about crime, the processes of justice or the penal system."


The exception clearly covers the serious representations which each inmate wished, and still wishes, to make.


3. The Prison Service Response


In paragraph 12 of her affidavit of 25th September 1996 Audrey Wickington, on behalf of the Prison service, says that in formulating policies the Secretary of State:—

"has had regard to the importance of the freedom of speech, which is a fundamental human right, and to...

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