R.V. SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE DALY, (2001) UKHL 26

 

1. R.V. SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE DALY, (2001) UKHL 26

 

FACTS

1. On 31 May 1995 the Home Secretary introduced a new policy (‘the policy’) governing the searching of cells occupied by convicted and remand prisoners in closed prisons in England and Wales. 

The policy was expressed in the Security Manual as an instruction to prison governors in these terms: 

“… 17.72 Subject to paragraph 17.73, staff may normally read legal correspondence only if the Governor has reasonable cause to suspect that their contents endanger prison security, or the safety of others, or are otherwise of a criminal nature. In this case the prisoner involved shall be given the opportunity to be present and informed that their correspondence is to be read. 

17.73 But during a cell search, staff must examine legal correspondence thoroughly in the absence of the prisoner. Staff must examine the correspondence only so far as necessary to ensure that it is bona fide correspondence between the prisoner and a legal adviser and does not conceal anything else. 

17.74 When entering cells at other times (e.g. when undertaking accommodation fabric checks) staff must take care not to read legal correspondence belonging to prisoners unless the Governor has decided that the reasonable cause test in 17.72 applies.” 

2. Daly is a long-term prisoner. He challenges the lawfulness of the policy. He submits that section 47(1) of the Prison Act 1952, which empowers the Secretary of State to make rules for the regulation of prisons and for the discipline and control of prisoners, does not authorise the laying down and implementation of such a policy … requirement that a prisoner may not be present when his legally privileged correspondence is examined by prison officers.

 

ISSUE

1. Whether there can be any ground for infringing in any way a prisoner’s right to maintain the confidentiality of his privileged legal correspondence?

 

IMPORTANT PRINCIPLE

1. Principle of proportionality

 

CONTENTIONS BY MR. DALY

1. He contends that a blanket policy of requiring the absence of prisoners when their legally privileged correspondence is examined infringes, to an unnecessary and impermissible extent, a basic right recognised both at common law and under the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that the general terms of section 47 authorise no such infringement, either expressly or impliedly.

 

CASE REFERRED TO

1. In R v. Board of Visitors of Hull Prison, Ex p St Germain [1979] QB 425, 455 Shaw LJ made plain that “despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration ... An essential characteristic of the right of a subject is that it carries with it a right of recourse to the courts unless some statute decrees otherwise.” 
2. Raymond v. Honey [1983] 1 AC 1 arose from the action of a prison governor who blocked a prisoner’s application to a court. The House of Lords affirmed, at p 10, that “under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication ...” Section 47 was held to be quite insufficient to authorise hindrance or interference with so basic a right as that of access to a court. To the extent that rules were made fettering a prisoner’s right of access to the courts and in particular his right to institute proceedings in person they were ultra vires. 
3. In R v. Secretary of State for the Home Department, Ex p Anderson [1984] QB 778 the prisoner’s challenge was directed to a standing order which restricted visits by a legal adviser to a prisoner contemplating proceedings concerning his treatment in prison when he had not at the same time made any complaint to the prison authorities internally. Reiterating the principle that a prisoner remains invested with all civil rights which are not taken away expressly or by necessary implication, Robert Goff LJ, giving the judgment of the Queen’s Bench Divisional Court, said, at p 790: “At the forefront of those civil rights is the right of unimpeded access to the courts; and the right of access to a solicitor to obtain advice and assistance with regard to the initiation of civil proceedings is inseparable from the right of access to the courts themselves.” 
4. R v. Secretary of State for the Home Department, Ex p Leech [1994] QB 198 … concerned rule 33(3) of the Prison Rules 1964 (SI 1964/388) [essentially, that letters to or from prisoners should be read by the Governor and any letter could be stopped letter if the contents were considered to be objectionable] … The decision is important for several reasons. 

First, it re-stated the principles that every citizen has a right of unimpeded access to the court, that a prisoner’s unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with a possible institution of proceedings in the courts forms an inseparable part of the right of access to the courts themselves and that section 47(1) of the 1952 Act did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and a client about contemplated legal proceedings.

Secondly, it was accepted that section 47(1) did not expressly authorise the making of a rule such as rule 33(3), and the court observed, at p 212, that a fundamental right such as the common law right to legal professional privilege would very rarely be held to be abolished by necessary implication. But the court accepted that section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offences against the criminal law and safeguarding national security.

The crucial question was whether rule 33(3) was drawn in terms wider than necessary to meet the legitimate objectives of such a rule. The court concluded that there was nothing which established objectively that there was a need in the interests of the proper regulation of prisons for a rule of the width of rule 33(3). Since rule 33(3) created a substantial impediment to exercise by the prisoner of his right to communicate in confidence with his solicitor the rule was drawn in terms which were needlessly wide, and so was held to be ultra vires.

 

RATIONALE

The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary … The respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, ‘that the intensity of review in a public law case will depend on the subject matter in hand’. 

 

The contours of the principle of proportionality are familiar. In de Freitas v. Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

 

HELD

Section 47(1) of the 1952 Act does not authorise such excessive intrusion, and the Home Secretary accordingly had no power to lay down or implement the policy in its present form. I would accordingly declare paragraphs 17.[72] to 17.74 of the Security Manual to be unlawful and void in so far as they provide that prisoners must always be absent when privileged legal correspondence held by them in their cells is examined by prison officers. 23. I have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review. But the same result is achieved by reliance on the European Convention. Article 8.1 gives Mr. Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly’s exercise of his right under article 8.1 to an extent much greater than necessity requires. In this instance, therefore, the common law and the convention yield the same result.

 

COMMENTARY<