The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject to any legislation altering the situation, a prisoner retains all his rights that are not taken away expressly or by necessary implication by the fact of his imprisonment: ‘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 . . In my opinion, there is nothing in the Prison Act 1952 that confers power to make regulations which would deny, or interfere with, the right of the respondent, as a prisoner, to have unimpeded access to a court. Section 47, which has already been quoted, is a section concerned with the regulation and management of prisons and, in my opinion, is quite insufficient to authorise hindrance or interference with so basic a right. The regulations themselves must be interpreted accordingly, otherwise they would be ultra vires. So interpreted, I am unable to conclude that either rule 34(8) – which is expressed in very general terms – or rule 37A(4), whether taken by themselves or in conjunction with Standing Orders, is in any way sufficiently clear to justify the hindrance which took place. The standing orders, if they have any legislative force at all, cannot confer any greater powers than the regulations, which, as stated, must themselves be construed in accordance with the statutory power to make them.’
Steyn L said: ‘By way of summary, we accept that section 47(1) of the Act of 1952 by necessary implication authorises some screening of correspondence passing between a prisoner and a solicitor. The authorised intrusion must, however, be the minimum necessary to ensure that the correspondence is in truth bona fide legal correspondence.’ but ‘rule 33(3) of the Rules of 1964 is extravagantly wide. The very technique of dealing in one provision with ordinary correspondence and legal correspondence is flawed. In our view the Secretary of State strayed beyond the proper limits of section 47(1) when he made rule 33(3).’
Lord Wilberforce, Steyn LJ
[1982] AC 1, [1981] UKHL 8, [1983] 1 AC 1, [1982] 1 All ER 756, (1982) 75 Cr App R 16, [1982] 2 WLR 465
Bailii
Prisons Act 1952 47(1), Prison Rules 1964 33(3)
England and Wales
Cited by:
Cited – Regina (on the Application of Ellis) v The Chief Constable of Essex Police Admn 12-Jun-2003
An officer proposed to print the face of a convicted burglar on posters to be displayed in the town. The court considered the proposal. The probation service objected that the result would be to make it more difficult for him to avoid criminality on . .
Cited – Regina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Nilsen, Regina (on the Application of) v Governor of HMP Full Sutton and Another Admn 19-Dec-2003
The prisoner complained that having written an autobiography, the manuscript materials had been withheld, and that this interfered with his rights of freedom of expression.
Held: Such an action by the prison authorities was not incompatible . .
Cited – Gillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited – Regina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Nilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – A, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – AB, Regina (On the Application of) v Secretary of State for Justice and Another Admn 4-Sep-2009
The claimant was serving a sentence of imprisonment. She was a pre-operative transgender woman, but held in a male prison. She sought review of a decision to refuse transfer to a women’s prison. The Gender Recognition Panel was satisfied that the . .
Cited – Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
Cited – Thakrar v The Secretary of State for Justice Misc 31-Dec-2015
County Court sitting at Milton Keynes. The claimant prisoner sought damages saying that his personal property had been damaged whilst in the care of the defendant.
Held: The claims succeeded in part. Some damage was deliberate. There was a . .
Cited – Simm’s Application for Judicial Review; O’Brien’s Application for Judicial Review and Main’s Application for Judicial Review CA 4-Dec-1997
In two cases, long term prisoners who asserted their innocence were in touch with journalists. Challenges were made against conditions imposed on their access that materials obtained during the visits should not be disclosed by the journalists. A . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Cited – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Lists of cited by and citing cases may be incomplete.
Prisons, Human Rights, Contempt of Court
Leading Case
Updated: 31 October 2021; Ref: scu.183561
