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 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) 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. Section 47(1) did not expressly authorise the making of a rule such as rule 33(3), and 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 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. Rules could properly be made to permit the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it was in truth bona fide correspondence and to permit the stopping of letters which failed such scrutiny. 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 question is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability.’
Steyn LJ, Neill LJ, Rose LJ
Independent 20-May-1993, Times 20-May-1993, [1994] QB 198, [1993] EWCA Civ 12, [1993] 3 WLR 1125
Bailii
Prisons Act 1952 47(1), Prison Rules 1964 (SI 1964/388) 33(3)
England and Wales
Citing:
Applied – Campbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
Cited – Raymond v Honey HL 4-Mar-1981
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 . .
Cited by:
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 . .
Approved – 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 – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – Regina v Secretary of State for Home Department ex parte Ian Simms and Michael Alan Mark O’Brien QBD 19-Dec-1996
A full restriction on the use of material emanating from a prison visit was unlawful as an interference with the right of free speech of the prisoner: ‘The blanket prohibition on making use of material obtained in a visit is not, on the evidence . .
Cited – Watkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Judicial Review, Human Rights, Prisons
Leading Case
Updated: 31 December 2021; Ref: scu.87987