R v Secretary of State for the Home Department, ex parte Leech
| Jurisdiction | England & Wales |
| Judgment Date | 19 May 1993 |
| Date | 19 May 1993 |
| Court | Court of Appeal (Civil Division) |
Prisons - Prisoners' rights - Prisoner's legal proceedings - Letters to and from solicitor in contemplation of proceedings - Governor's power to examine and stop - Whether ultra vires -
The applicant was a prisoner who was engaged in and contemplating various civil actions. Concerned that correspondence with his solicitor was being subjected to censorship under the Prison Rules 1964, he applied for judicial review and sought to quash the prison governor's power, under rule 33(3), F1 to censor a prisoner's correspondence, in so far as it included letters between the prisoner and his legal adviser concerning legal proceedings not yet commenced, as being ultra vires section 47(1) of the Prison Act 1952.F2 Webster J. refused his application.
On the applicant's appeal: —
Held, allowing the appeal, that, although a convicted prisoner retained all civil rights which were not removed either expressly or by necessary implication, it was reasonable to interpret section 47(1) of the Prison Act 1952 as authorising some interference with the general right of confidentiality; that it was a principle of fundamental importance that every citizen had a right of unimpeded access to a court, and to a solicitor for the purpose of receiving advice and assistance in connection therewith, and section 47(1) did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and client about contemplated legal proceedings; that by necessary implication section 47(1) conferred a power wide enough to comprehend rules permitting the examination and reading of correspondence passing between prisoner and solicitor in order to ascertain whether it was in truth bona fides; that rule 33(3) of the Prison Rules 1964 was in much wider terms, and section 47(1) did not authorise the stopping of letters between prisoner and solicitor on grounds of prolixity nor was there objective justification for an unrestricted power to read and examine such letters, or for a qualified power to stop such letters on the ground of objectionability; and that, accordingly, rule 33(3) was ultra vires so far as it purported to apply to correspondence between a prisoner and his legal adviser (post, pp. 1134A–B, C, F, 1135A, D–E, 1137B, C, E, H–1138A, B–C, F–H, 1140E–1141B, G–H, 1142B–C).
The following cases are referred to in the judgment:
Attorney-General v. Guardian Newspapers Ltd. (No. 2) [
Campbell v. United Kingdom (
Comfort Hotels Ltd. v. Wembley Stadium [
D. v. National Society for the Prevention of Cruelty to Children [
Director of Public Prosecutions v. Hutchinson [
Golder v. United Kingdom (
Leech v. Secretary of State for Scotland (unreported), 26 October 1990, Lord Caplan
Parry-Jones v. Law Society [
Raymond v. Honey [
Reg. v. Board of Visitors of Dartmoor Prison, Ex parte Smith [
Reg. v. Secretary of State for the Home Department, Ex parte Anderson [
Solosky v. The Queen (
The following additional cases were cited in argument:
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [
Derbyshire County Council v. Times Newspapers Ltd. [
Reg. v. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat Bibi [
APPEAL from Webster J.
By a notice of motion dated 5 December 1990, the applicant, Mark Leech, sought judicial review, against the Secretary of State for the Home Department, of the stipulation in the Prison Rules 1964, Standing Order 5B (35) and Circular Instruction 23/87 that a prisoner could not have privileged, uncensored correspondence with his legal adviser unless the inmate was a party to proceedings in which a writ had been issued on which he was a named party. The applicant sought an order of certiorari to quash the rule and declarations that the standing order and circular instruction were ultra vires and void and that a legally privileged relationship existed between a prisoner and his legal adviser. On 22 October 1992 Webster J. refused the application.
By a notice of appeal dated 18 November 1991 the applicant appealed on the ground that (1) the judge erred in law in ruling that the prison authorities had a lawful power conferred on them by section 47(1) of the Prison Act 1952 and rule 33(3) of the Prison Rules 1964 to open and read letters passing between the applicant and his solicitors when proceedings were not in being; (2) section 47(1) of the Prison Act 1952 did no more than to confer a general rule-making power on the Secretary of State and could not authorise an interference with the right to privileged communications with one's solicitor; (3) the practice of requiring a prisoner who was corresponding about the possibility of proceedings not yet in being to submit his correspondence to be opened and read constituted an impediment to a prisoner's right of unimpeded access to the courts since it required him to surrender the right to privileged correspondence in order to gain the right to contact his solicitor by letter and thus to do something he would not otherwise be required to do in order to enjoy his basic right; (4) the judge erred in law in that, whilst he accepted that an impediment to a prisoner's right of access to the courts was unlawful, he wrongly ruled that the practice challenged did not constitute such an impediment because it did not completely deny a prisoner's right of access to his solicitor and through him to the courts; and (5) the judge erred in law in ruling that the practice complained of did no more than to regulate reasonably the exercise of a prisoner's right of confidential communication with his solicitor and, in interpreting the applicant's challenge as a challenge based on Wednesbury principles to the rationality of the Secretary of State's regulation, the judge fundamentally misunderstood the fact that it was a challenge based on a proposition of law that there was a limit to the inspection that could lawfully be permitted.
By a respondent's notice dated 4 December 1991, the Secretary of State sought to affirm the judgment of Webster J. on the grounds that (1) the Prison Rules 1964, in particular rules 33 (3) and 37A(1), were intra vires section 47 of the Prison Act 1952 in the sense that the applicant's exercise of his right of access to the courts was not impeded, denied or removed; it was merely regulated; (2) in so far as the applicant asserted that the nature of the right of confidential communication was so fundamental that anything but the necessary minimum invasion of that right for security reasons was unlawful, the Secretary of State submitted that that was seeking to rely on the doctrine of proportionality, which was no part of English law, that such formulation sought to leave the determination of the issue for the court rather than the Secretary of State (and was founded on an erroneous approach for that reason); and, that that formulation also did not address the critical question of whether the rule was intra vires or not; and (3) rule 33(3), and other relevant rules, were intra vires the enabling statute since they were expressly or impliedly permitted by section 47(1): they did not constitute an unlawful interference with the applicant's rights.
The facts are stated in the judgment.
Edward Fitzgerald for the applicant.
Robert Jay for the Secretary of State.
19 May. The following judgment of the court was handed down.
STEYN L.J. Section 47(1) of the Prison Act 1952 empowers the Secretary of State for the Home Department to make rules for the regulation and management of prisons. Rule 33(3) of the Prison Rules 1964 provides:
“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.”
The principal question arising on this appeal is whether rule 33(3) is ultra vires section 47(1) of the Act of 1952 on the ground that it permits the reading and stopping of confidential letters between a prisoner and a solicitor on wider grounds than merely to ascertain whether they are in truth bona fide communications between a solicitor and client.
The regulatory frameworkNotwithstanding the narrowness of the principal issue, it is right at the outset to set out the regulatory provisions which touch on the matter.
The status of the various facets of the regulatory framework must be identified. Section 47(1) of the Prison Act 1952 is the only relevant primary legislation. Pursuant to section 47 rules are made by statutory instrument: section 52(1) of the Act. And any statutory instrument containing rules under section 47(1) is subject to annulment by a resolution of either House of Parliament: section 66(4) of the
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