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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date19 May 1993

Court of Appeal

Before Lord Justice Neill, Lord Justice Steyn and Lord Justice Rose

Regina
and
Secretary of State for the Home Department, Ex parte Leech (No 2)

Prisons - judicial review - power to examine prisoners' correspondence

Prisoners' letters rule unlawful

Rule 33(2) and (3) of the Prison Rules (SI 1964 No 388) was ultra vires section 47(1) of the Prison Act 1952 so far as it purported to apply to correspondence between prisoners and their legal advisers.

The Court of Appeal so held in a reserved judgment in allowing an appeal by Mark Francis Leech against the dismissal by Mr Justice Webster on October 22, 1991 of his application for judicial review.

Rule 33 of the 1964 Rules provides: "(3) Except as provided by these rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length."

Mr Edward Fitzgerald for Mr Leech; Mr Robert Jay for the secretary of state.

LORD JUSTICE STEYN, delivering the judgment of the court, said that the principal question arising on the appeal was whether rule 33(3) was ultra vires section 47(1) of the 1952 Act on the ground that it permitted the reading and stopping of confidential letters between a prisoner and a solicitor on wider grounds than merely to ascertain whether they were in truth bona fide communications between a solicitor and client.

It was plain that rule 33(3) drew a distinction between (a) the power of prison authorities to read and examine letters and (b) the power to stop letters. Rule 33(3) created an unrestricted power to read or examine "every letter". On the other hand, the power to stop a letter was qualified by the purpose for which it could be exercised.

Mr Jay submitted that both the power to read and examine letters and to stop letters were only intended to enable the prison authorities to take action, where there were no extant legal proceedings, in order "to satisfy themselves that it was in fact bone fide correspondence".

That submission did not distinguish between the two powers. It could not be squared with the language which created a qualified but wide power to stop correspondence on the ground of objectionability or prolixity. Their Lordships found the submission unsustainable.

It was an axiom of our law that a convicted prisoner, in spite of his...

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132 cases
11 books & journal articles
  • Judicial Deference under the Human Rights Act
    • United Kingdom
    • The Modern Law Review Nbr. 65-6, November 2002
    • 1 November 2002
    ...the courts ought to be willing to apply the proportionality test more70 RvSecretary of State for the Home Department, ex p Leech (No 2) [1994] QB 198; RvLordChancellor, ex p Witham [1998] QB 575; RvMinistry of Defence, ex p Smith [1996] QB 517; RvSecretary of State for Social Security, ex p......
  • The rule of law
    • Ireland
    • Irish Judicial Studies Journal Nbr. 1-8, January 2008
    • 1 January 2008
    ...1 A.C. 433, at para. 36. 42Raymond v. Honey [1983] 1 A.C. 1, at 12–13; R v. Secretary of State for the Home Department, Ex p Leech [1994] Q.B. 198, at 210; R v. Lord Chancellor, Ex p Witham [1998] Q.B. 575, at 585–586. 2008] The Rule of Law 135 expensive. The old gibe about the Ritz Hotel i......
  • Disposing of Dicey: From Legal Autonomy to Constitutional Discourse?
    • United Kingdom
    • Political Studies Nbr. 48-2, May 2000
    • 1 May 2000
    ...are not automaticallyincorporated into the domestic legal system but require statutory authority.53 R v Home Secretary ex p. Leech [1994] QB 198, R v Lord Chancellor ex p. Witham [1997] 2 All ER 779 (rightof access to the court, ECHR Art 6(1)); R v Ministry of Defence ex p. Smith [1996] 1 A......
  • Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom
    • United Kingdom
    • The Modern Law Review Nbr. 62-3, May 1999
    • 1 May 1999
    .... .. to negotiate. . .’ (emphasis added)).78 ibid para 32.79 ibid.80 eg RvSecretary of State for the Home Department, ex p Leech (No 2) [1994] QB 198; RvMinister ofDefence, ex p Smith [1996] QB 517; RvLord Chancellor, ex p Witham [1997] 2 All ER 779; RvHome Secretary, ex p Pierson [1998] AC......
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