England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE 97/0252/D, 97/0316/D & 97/1041/D

(MR JUSTICE LATHAM)

Royal Courts of Justice

Strand

London WC2

Thursday 4th December 1997

B e f o r e:

LORD JUSTICE KENNEDY

LORD JUSTICE JUDGE

and

LORD JUSTICE CHADWICK

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(1) SIMM'S APPLICATION FOR JUDICIAL REVIEW

(2) O'BRIEN'S APPLICATION FOR JUDICIAL REVIEW

(3) MAIN'S APPLICATION FOR JUDICIAL REVIEW

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(Handed Down Transcript of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR K PARKER QC and MR S KOVATS (Instructed by Messrs Bindman & Partners, Kings Cross) appeared on behalf of the Applicants Simm and O'Brien

MR T OWEN and MISS P KAUFMAN (Instructed by Treasury Solicitors) appeared on behalf of the Respondent

MR T OWEN (Instructed by Messts Atter Mackenzie, Evesham) appeared on behalf of the Applicant Main

MR K PARKER QC and MR S KOVATS appeared on behalf of the Respondent

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J U D G M E N T

(As Approved by the Court)

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Crown Copyright

LORD JUSTICE KENNEDY:

1. Introduction

Simms and O’Brien are two convicted prisoners each serving long sentences, and each still protesting his innocence. For a time each was being visited by a journalist, in the case of Simms it was a freelance journalist Robert Woffinden, and in the case of O’Brien it was Karen Voisey of BBC Wales. When the prison authorities discovered the occupation of the visitors they made it clear that the visits could only continue if the journalists signed an undertaking that any material obtained during the visit would not be used for professional purposes, and in particular for publication by the journalist or any one else. Each journalist refused to sign, so further visits were not allowed. Each prisoner then commenced proceedings for judicial review of what he described as “the continuing decision” of the Home Secretary that he may only receive visits from the journalist if the journalist has signed the undertaking. The applications for judicial review were heard together before Latham J who, on the 19th December 1996, found for the applicants and gave leave to appeal to this court.

Main is also a convicted prisoner who is serving a substantial sentence of imprisonment. As a result of recommendations made in the Woodcock Report after the escape from Whitemoor Prison it came the practice for prisoners to be removed from their cells and strip-searched. Then in their absence their cells would be thoroughly searched. The search would extend to correspondence, including correspondence with lawyers, which would be examined to see that it was what it purported to be. Main objected to the examination of such correspondence and applied for judicial review of “the continuing decision of the governor of HMP Whitemoor to authorise prison staff to search in his absence the applicant’s confidential legal correspondence covered by rule 37A of the Prison Rules 1964.” The application was heard by the Divisional Court (Pill LJ, Latham and Astill JJ) and on 16th May 1997 it was dismissed.

We heard the appeals one after the other because in each case the decision under challenge was taken in accordance with Prison Standing Orders, or a governor’s order, which reflected policy at national level. It follows that the decision can only be impugned if either the Standing Order or the governor’s order in question is shown to have been made ultra vires , or the decision itself was unreasonable in a Wednesbury sense. There is therefore raised in each case the issue as to what should be the court’s approach to problems of this kind, but having indicated why the appeals were heard sequentially I propose to return to deal first with the appeal of Simms and O’Brien. That involves looking in each case a little more closely at the facts before turning to the law and the Standing Orders.

2. Facts of Simms and O’Brien

In 1988 Simms was convicted of murdering Helen McCourt. He sought leave to appeal, but leave was refused by the Court of Appeal Criminal Division on 8th October 1990. In that year he wrote to Robert Woffinden, a journalist who had done work connected with miscarriages of justice, and Woffinden began to visit him in prison. In 1995 Woffinden wrote a newspaper article about Simms’ case and tried to get a television documentary commissioned. According to both Woffinden and Simms they became close friends, and Woffinden says that Simms writes long letters to him about once a week, but it is clear that much of what has passed between them was and is concerned with Simms’ attempts to establish that he was wrongly convicted.

In August 1994 a Member of Parliament, who represented the constituency in which Helen McCourt’s mother lived, wrote to the Home Secretary to ask what was going on, and in particular if Woffinden had been given permission to make a documentary about Helen McCourt’s murder. If so, was the object to establish Simms’ innocence, were the prison authorities co-operating, and did Woffinden have unlimited access to Simms? There were other questions raised which are not material for present purposes. The MP’s letter clearly caused enquiries to be made by the Prison Service which revealed that Woffinden had visited Simms at HMP Full Sutton on three occasions using the limited number of statutory visiting orders issued to prisoners for family and social visits. Woffinden had not sought permission to visit Full Sutton as a journalist, and he was advised that if he wished to visit again as a friend he must sign a written undertaking in accordance with paragraph 37 of Prison Service Standing Order number 5, section A. Standing Order 5 deals with communications, and section A with visits. Paragraph 37 is one of two paragraphs which appear under the heading “Visits by journalists or writers” and it reads :-

“Visits to inmates by journalists or authors in their professional capacity should in general not be allowed and the governor has authority to refuse them without reference to headquarters. If a journalist or author who is a friend or relative wishes to visit an inmate in this capacity and not for professional purposes, the governor should inform the intending visitor that before the visit can take place he or she will be required to give a written undertaking that any material obtained at the interview will not be used for professional purposes and in particular for publication by the intending visitor or anyone else.”

Mr Woffinden has so far refused to give the undertaking.

The facts in the case of O’Brien have many similarities, but there is one important distinction. O’Brien was convicted of murder and robbery at Cardiff Crown Court on 20th July 1988, and his application for leave to appeal was refused by the Court of Appeal Criminal Division on 16th march 1990. He too protests his innocence, and he made contact with Karen Voisey of BBC Wales. She visited him at HMP Long Lartin on 22nd November 1995, but on 19th December 1995 when she went to the prison again, O’Brien having applied for a visiting order for her as his friend, she was told that unless she signed an undertaking identical to that which was sought from Woffinden the visit could not proceed. The form of undertaking is with the papers and it reads :-

“I .......... visiting inmate no ....... name ........ hereby undertake that any material obtained during the visit will not be used for professional purposes, and in particular for publication by me or anyone else.”

Karen Voisey refused to sign so the visit did not proceed. The significant difference between the case of Simms and that of O’Brien is that in his affidavit O’Brien does not claim that Karen Voisey ever became his friend, even though that was the implication when he applied for a visiting order, hence the request to her to sign the undertaking envisaged by paragraph 37 of Standing Order 5 section A. She, like Woffinden, has never sought admission to Long Lartin as a journalist. Had she done so the relevant paragraph of Standing Order 5 section A would have been paragraph 37A which provides :-

“Where, exceptionally, a journalist or author is permitted to visit an inmate in his or her professional capacity, or is allowed general access to the establishment, he or she will be required to give a written undertaking that no inmate will be interviewed except with the express permission in each case of the governor and the inmate concerned, that interviews will be conducted in accordance with such other conditions as the governor considers necessary, and that any material obtained at the interview will not be used for professional purposes except as permitted by the governor. No inmate should be permitted to accept any payment or gratuity in exchange for an interview or for a radio or television appearance.”

Both Simms and O’Brien have remained free to correspond with Woffinden and Voisey, subject to the constraints of Standing Order 5, section B, which deals with correspondence. Paragraph 34 of that section, so far as material, provides :-

“General correspondence, as defined in paragraph 33(1) may not contain the following :

(9) material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it:

c. is about the inmates own crime or past offences or those of others, except where it consists of serious representation about conviction or sentence or forms part of serious comment about crime, the processes of justice or the penal system.”

The exception clearly covers the serious representations which each inmate wished, and still wishes, to make.

3. The Prison Service Response

In paragraph 12 of her affidavit of 25th September 1996 Audrey Wickington, on behalf of the Prison service, says that in formulating policies the Secretary of State:-

“has had regard to the importance of the freedom of speech, which is a fundamental human right, and to the importance of the confidentiality of correspondence. These considerations have to be balanced against the need to protect the legitimate interests of the public, including the victims of crime.”

In paragraph 13 she says :-

“The arrangements covering representatives of the media visiting prisoners and using the information obtained for professional purposes, such as in each of these cases where the two applicants sought to publicise their claims to be innocent of the offences of which they had been convicted, are designed to prevent gratuitous details of a prisoner’s offence or his attitude towards the offence and/or the victim entering the public domain. If such safeguards are not maintained, the scope for abuse would be enormous, and consequently there would be a serious risk of distress to victims and their families and general public outrage at the sight of prisoners and representatives of the media collaborating to publish details of any aspect of a prisoners case.”

The affidavit goes on to deal with the situations which arise when, pursuant to paragraph 37A of Standing Order 5 section A, a governor decides to allow a journalist or author to visit an inmate for professional purposes. We are not here dealing with such a case.

4. Further Evidence

Before us Mr Kenneth Parker, Q.C. for the Secretary of State, sought leave to introduce a second affidavit from Audrey Wickington and an affidavit from Robert Thomas, and we granted that leave. In her further affidavit Audrey Wickington explains in more detail why the prison service takes the view that journalists cannot be admitted as friends unless they sign the undertaking sought. Steps are already taken to ensure that visitors do not introduce tape recorders or transmit during visits, but staff ratios are not such as to permit supervision of conversations on a one to one basis, so as to ensure that they are confined to serious representations about convictions or sentences, nor do staff have the background knowledge and experience necessary to act as effective supervisors. Also it is the view of the prison service that the dramatic impact of an article or a documentary is increased if it is based upon a live interview, and yet the article or documentary may misrepresent a prisoner’s point of view, or over-emphasise it at the expense of the victim and of the conviction. Convicted prisoners whose cases attract press interest at the time of trial would be a particular focus of media attention, and any attempt to enforce a qualified undertaking would cast a considerable burden on the Prison Service, not least because it could be argued that such a recently convicted prisoner had serious comments to make about crime, justice and penal policy.

Robert Thomas is the Chief Press Officer for the Prison Service, and his affidavit underlines some of the points made by Audrey Wickington. He says that prison staff do not have the skills necessary to identify and deal with a trained journalist seeking information for a story so where, exceptionally, a journalist is admitted pursuant to Standing Order 5 section A paragraph 37A a professional information officer or someone with media training has to be in attendance. Robert Thomas points out that many journalists are capable of discussing a subject in general terms and then selecting a small part to sensationalise an interviewee’s views. The misrepresented inmate, as well as the victim of the offence, can easily be left disenchanted and with little means of redress.

5. Legislative Background

Standing Order 5 is made pursuant to Rule 33(1) of the Prison Rules 1964(as amended) which is in a section of the Rules headed “Letters and visits.” Under the side-heading “Letters and visits generally” Rule 33 provides :-

Under the side heading “Personal letters and Visits” rule 34 so far as is material, provides :-

“(1) An unconvicted prisoner may send and receive as many letters and may receive as many visits as he wishes within such limits and subject to such conditions as the Secretary of State may direct, either generally or in a particular case.

(2) A convicted prisoner shall be entitled -

(a) to send and to receive a letter on his reception into prison and thereafter once a week; and

(b) to receive a visit twice in every period of four weeks, but only once in every such period if the Secretary of State so directs.

(8) A prisoner shall not be entitled under this rule to receive a visit from any person other than a relative or friend except with the leave of the Secretary of State.”

The Prison Rules were made pursuant to section 47(1) of the Prison Act 1952 which provides :-

“The Secretary of State may make rules for the regulation and management of prisons, remand centres, detention centres and youth custody centres respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.”

6. The Ultra Vires Argument

In Raymond v Honey (1983) AC 1 the House of Lords was concerned, amongst other things, with a governor’s intervention to stop a prisoner’s application to the High Court. At page 12 H Lord Wilberforce said :-

“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.”

In R v Secretary of State for the Home Department Ex p. Leech (1994) QB 198 the governor interfered with correspondence between a prisoner and his solicitor in relation to contemplated civil litigation. The interference was in accordance with rule 33(3) of the Prison Rules as they then stood. The question therefore before this court was one of vires - whether the rule was within the scope of the rule-making power conferred by section 47(1), or whether the rule was too wide (see page 208 B-C). Steyn L.J., giving the judgment of the court, said at page 210 D :-

“A prisoner’s unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts form an inseparable part of the right of access to the courts themselves.”

Having regard to what Lord Wilberforce had said in Raymond v Honey (supra) it followed that the rule went too far. At page 217 G Steyn L.J. 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.”

At page 218 B Steyn L.J. concluded :-

“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).”

7. Before Latham J.

Before Latham J Mr Owen, for Simms and O’Brien, deployed the ultra vires argument. He submitted, and the judge accepted, that the right of free speech includes a right of oral access to the media, and that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. It was accepted that section 47(1) of the 1952 Act, at least by implication, authorised some curltainment of civil rights, but it was contended that if interference was more than the minimum necessary to achieve the objects of the statute then it could not be sustained. The judge accepted that as a correct approach in law. He then went on to find that :-

(1) the prohibition on communicating with the media by letter save where the inmate is making serious representations about his or her conviction or sentence or is otherwise making a serious comment about the crime, the processes of justice or the penal system, meets the Leech test of being the minimum interference necessary to achieve the statutory objectives.

(2) the prison authorities have “every opportunity to control a visit by way of ensuring that there are no tape recordings or transmissions from the visit, and, by listening to the visit, policing its content.” There was, he said, no evidence before him to justify the conclusion that visits would be incapable of appropriate control - an omission which the appellants have now sought to rectify by means of further evidence.

(3) appropriate undertakings could be devised ‘to restrict satisfactorily the topics for and ambit of discussions at any visits’.

(4) ‘the blanket prohibition on making use of material obtained in a visit is not ..... justified as the minimum interference necessary with the right of free speech (my emphasis) to meet the statutory objectives.

8. Before Court of Appeal

Before this court Mr Parker submitted that the vires approach adopted by the Judge was misconceived. The relevant Prison Rules were plainly intra vires Section 47(1) of the Act, and the relevant paragraphs of the Standing Orders, and in particular paragraph 37 in section A of Standing Order 5 are no more than administrative decisions which may be challenged, if at all, on conventional Wednesbury grounds. In support of that submission Mr Parker invited our attention to the decisions of in this court in R v Secretary of State for the Home Department ex p Bamber (15th February.1996 unreported) and R v Secretary of State for the Home Department ex p O’Dhubuir (27th February 1997 unreported). Bamber’s case was the renewal of an application for leave to move for judicial review of a restriction on the telephone numbers which the applicant, a convicted murderer, could telephone from prison following his call to a radio programme. This court found both the vires attack and the rationality attack to be unarguable. At page 11 C of the transcript Aldous L.J. said:-

“It cannot be doubted that if it is justifiable for the Home Secretary to exercise restraint over written communications by prisoners, as is accepted in this case, it must be proper for him to exercise restraint over communications by telephone. In this respect the similarity between Articles 8 and 10....... are relevant. By the very nature of the telephone it is not practical that every telephone call made by a prisoner should be monitored. Therefore rules, along the lines suggested by the Home Secretary, had to come into force. Such rules amount to a restriction in the way the prisoner may express his views and feelings. However, I cannot see how they could be unlawful or unreasonable in circumstances where the prisoner can communicate his views and feelings in writing and can seek permission in writing in exceptional circumstances from the governor to enable a telephone call to be made.”

O’Dhubuir was concerned with an instruction by prison governors that for exceptional risk prisoners held in a special secure unit the closed visits would be the norm. That policy was said to be unlawful because of its effect on legal and family visits. The instruction to governors was pursuant to Rule 33 (1) in that case it seemed to me that Rule 33(1) of the Prison Rules was obviously intra vires section 47(1), so the only remaining question was whether the instruction was unreasonable in a Wednesbury sense. Furthermore, as Peter Gibson L.J. pointed out the basic common law right for which the appellants contended - the right to an open interview with a lawyer, and the right to an open visit with ones immediate family - were not shown to exist.

Mr Owen submitted that Latham J was right to adopt the vires approach, and pointed out that Leech was cited by both Lord Browne-Wilkinson and Lord Steyn in R v SSHD ex p Pierson (1997) 3 WLR 492 which concerned mandatory life sentences. At page 507 A Lord Browne-Wilkinson said :-

“A power conferred by Parliament in general terms is not to be taken to authorise doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”

However Lord Browne-Wilkinson did not accept the existence of the basic principle for which the appellant contended, and that, as it seems to me, is Mr Owen’s principal problem here.

Mr Owen contends that the right which is in issue in the case of both Simms and O’Brien is the right of a prisoner (my emphasis) to freedom of expression as set out in Article 10 of the European Convention of Human Rights which, he submits, reflects exactly the common law. Article 10 provides:-

“1. Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or similar enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

This right, Mr Owen contends, includes a right to communicate with the media through a journalist and in turn the journalist to express his opinions more broadly to the public. He invited our attention to the decision of the European Commission in Silver and others v U.K. (1980) 2 EHRR 475 and to the decision of Dyson J in R v SSHD ex p Norney and others (1995) ALR 861, but I need not dwell on either of those reports.

9. Conclusion re Simms and O’Brien

In my judgment a convicted prisoner has no right to communicate orally with the media through a journalist. The loss of that “right”, if it can properly be so described, is part and parcel a sentence of imprisonment. He can no longer go where he wishes. He is confined. He can no longer speak to those outside prison or receive visits from anyone other than his lawyer and his relatives and friends. If one of his friends happens to be a journalist the Prison Service is entitled to require an undertaking in accordance with Standing Order 5 section A paragraph 37, not least so as to ensure that parity as between one prisoner and another is maintained. I entirely accept that, in the language of article 10, the freedom “to receive and impart information and ideas without interference by public authority” is curtailed by imprisonment but that is what imprisonment is all about, and that too is recognised by the European Convention.

Lest it be thought that the efforts of Simms and O’Brien to establish their innocence are being some way unfairly curtailed it is worth remembering that they can still have access to lawyers and correspond with journalists - just like any other prisoner. I would therefore reject the vires argument which found favour with the Judge and allow the appeal. In so far as Mr Owen sought to contend that the requirement of a written undertaking was and is irrational, disproportionate or otherwise unjustifiable, I would reject that submission, particularly in the light of further evidence placed before us to which I have already referred.

10. Facts of Main

The facts in the case of Main are summarised at the start of this judgment, and the order from the governor of HMP Whitemoor to prison staff which set out the revised arrangements for cell searching is Governor’s Order 36/1995 dated 21st June 1995. Annex A to the Order sets out how cell searches are to be conducted after a prisoner has been taken elsewhere, and paragraphs 3 and 6 of that annex read :-

“3...... UNDER NO CIRCUMSTANCES must the prisoner be allowed to remain in the cell during the search (removing the prisoner from or near the cell area avoids attempts to intimidate or distract the searching officers).

6. Search the cell thoroughly including ventilators, ceiling, floor, walls, door, windows (inside and out), grilles and pipes and fittings. Correspondence, particularly that issued under Prison Rule 37A, is to be searched but not read.”

Prison Rule 37A provides :-

“(1) A prisoner may correspond with his legal adviser at any court and such correspondence may only be opened, read, or stopped by the governor in accordance with the provisions of this rule.

(2) Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such enclosure shall be dealt with in accordance with the other provisions of the Rules.

(3) Correspondence to which this Rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.

(4) A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped.”

On 22nd June 1995 the governor of Whitemoor issued Notice to Inmates 77/1995 advising inmates of the latest developments in relation to cell searches. Under the heading “Correspondence under Rule 37A” that notice reads :-

“All searching staff have been instructed to search all property in cells after you have been strip searched and located in a sterile area. This includes the searching of correspondence issued under Rule 37A. Staff have also been instructed that the purpos is to search and not read the correspondence. Supervisors and managers will be carrying out checks to ensure that searches are being carried out to the required standards.”

11. The Appellant’s submissions

Mr Owen pointed out that paragraph 6 of Annex A does not leave the prison officer searching the cell any discretion. It applies to all closed prisons regardless of the category of the inmates. All correspondence has to be searched, but not read. If that injunction is carefully obeyed there will in most cases be no contravention of Rule 37A (1) even though prisoners will tend to believe that prison officers will read what they want to read, and Mr Owen reminds us that in Solosky v The Queen (1979) 105 DLR (3d) 745 Dickson J said at page 760 :-

“Nothing is more likely to have a ‘chilling’ effect upon the frank and free exchange and disclosure of confidences, which should characterise the relationship between inmate and counsel, than the knowledge that what has been written will be read by some third person, and perhaps used against the inmate at a later date.”

Furthermore if a letter in a cell has just been received from a solicitor, but has not yet been opened by the prisoner, or is one written by the prisoner to a solicitor which he has sealed but not yet sent off, the prison officer would have to open the letter in order to search it, and such opening would not be in accordance with the provisions of Rule 37A because :-

(1) At least in most cases the governor would have no particular suspicions in relation to that letter (see Rule 37A(2) and (3) ) and -

(2) in any event there would be no compliance with Rule 37A(4).

In his affidavit of 23rd August 1996 Mr A.R. Walker, acting Director General of the Prison Service explained why the procedure for searching cells was as set out by the governor of Whitemoor in the documents to which I have referred. In paragraphs 14 and 15 of his affidavit he says :-

“14. Many items which could help a prisoner escape are capable of being secreted in legal papers. Drugs in powder or tablet form have been found stuck to or interleaved in papers. Records of drug dealing have also been maintained on paper. In the case of maps, sketches, and lists of security details such as key codes and relevant measurements, these could be hidden by being interleaved in correspondence or could simply be recorded in note form on legal papers themselves. In the case of money, small bladed items such as razors and hacksaws, and keys, these could be stored between two sheets of paper glued together to form a closed pouch. Items of this sort could also be stored within envelopes.

15. The Prison Service took the view that it was necessary that the recommendations of Sir John Woodcock should apply to all property, including correspondence with legal advisiers once it had been received, opened, and stored in the prisoner’s cell. Rule 37A does not apply to such material, nor does it apply by way of analogy. Rule 37A deals with a wholly different category of material, namely correspondence in transit between a legal adviser and a prisoner. It is a rule designed to permit private communication, in writing, between prisoners and their legal advisers. By virtue of the fact, this material can be treated with a measure of confidence as to its contents, in view of the professional status and duties of the legal adviser. In addition such material is rarely bulky and may easily be searched in the presence of the prisoner.”

In a later affidavit of 29th April 1997 Mr Philip Wheatley, Director of Dispersal Prisons said :-

“It is not just articles which can be detected by X-ray technology, for example metal items and possibly larger quantities of drugs, that we have a security interest in finding, but also in finding many other items which can be recorded on paper. These include, for example: drawings of keys, escape plans of the prison and its constructions, detailed maps of the surrounding area, details of staff and their cars, records of debts owed by prisoners to prisoners, records of drugs transactions, betting slips and details of betting transactions, addresses of other prisoners, contact telephone numbers and addresses of criminal’s and associates outside etc. We also doubt the effectiveness of X-rays to detect smaller amounts of drugs or carefully hidden explosives. For example it may be possible to roll out semtex so that it mimics in size and shape a page of A4 paper, which may make it hard to detect within a bundle of A4 sheets.”

Mr Owen submits that if correspondence in transit is entitled to protection that protection cannot evaporate as soon as the letter is received. Such letters are protected by legal professional privilege, and that is not something which can easily be swept aside. Article 8(1) of the European Convention on Human Rights provides that :-

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

In Campbell v U.K. (1992) 15 EHRR 137 a prisoner serving a sentence in Scotland complained that the prison authorities had opened and read correspondence passing between himself and his solicitor, and had opened without reading some correspondence from the European Commission for Human Rights. Both types of interference were held to amount to a violation of Article 8, and it is clear from paragraph 43 of the judgment, at page 160, that the UK Government “did not contest that if correspondence relating to pending proceedings had been routinely opened there would have been a breach of Article 8”. The government did, as in the present case, point to the need to open letters to determine whether they can find prohibited material, and at paragraph 48 the court set out its approach to correspondence between prisoners and their legal advisers. That paragraph, so far as is material reads:-

“Admittedly, as the Government pointed out, the border line between mail concerning contemplated litigation and that of a general nature is especially difficult to draw and correspondence with a lawyer may concern matters which have little or nothing to do with litigation. Nevertheless, the Court sees no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concern matters of a private and confidential character. In principle, such matters are privileged under Article 8.

This means that the prisoner authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection had failed to disclose. The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, e.g. opening the letter in the presence of the prisoner. The reading of a prisoner’s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privileges are being abused and that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature.”

Mr Owen contends that Rule 37A of the Prison Rules reflects the decision in the case of Campbell. The protection afforded by the rule extends or ought to held to extend to correspondence stored in a prison cell. Otherwise there would be a violation of Article 8, and an unwarranted interference with legal professional privilege, which UK courts have always been and still are astute to protect (See R v Derby Magistrates’ Court ex p Brookes (1996) 1 AC 487). As Mr Owen points out, it was this right of confidentiality of correspondence which this court was considering in Leech, but in that case Steyn L.J. said at page 213 H :-

“In our judgment section 47(1) must be interpreted as conferring by necessary implication a power to make rules to achieve the stated objectives. We are satisfied that this implied power is wide enough to comprehend rules permitting the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it is in truth bona fide correspondence between a prisoner and a solicitor and to stop letters which fail such scrutiny.”

Mr Owen submits that read in context the passage which I have just cited was only intended to cover examination of documents where the prison governor had reasonable cause to suspect some form of abuse. Mr Owen also pointed out that in November 1996 the Prison Ombudsman, Sir Peter Woodhead, upheld a complaint in relation to the screening of legal correspondence as part of routine cell searching in the absence of the inmate. Sir Peter’s recommendation, which is of course in no way binding upon us reads :-

“That prison service policy on cell searching be revised to allow the prisoner to remain in the cell whilst his/her legal papers are being searched, after which the documents are sealed in a box or bag.”

12. The Respondent’s submissions

Mr Parker invited us to follow the reasoning of the Divisional Court. He submitted that Rule 37A, which was drafted in the light of the decisions in Leech and Campbell, is not concerned with cell searches, of which Pill L.J. said at page 10D :-

“I do not accept that the presence of the prisoner is the only way to give effect to legal professional privilege or that it necessarily provides complete protection. Indeed, the presence of the prisoner does not in itself prevent a prisoner officer from reading a document which, in the interests of security, he is entitled to examine. An attempt has been made in the relevant instructions to provide a safeguard and there must be a margin of appreciation in the governor when considering how searches are conducted.”

Mr Parker further submitted that it would not be practicable to distinguish between different categories of prisoner if security is to be achieved, for the obvious reasons that anything which needed to be hidden would simply be passed to a prisoner in a lower category, and he pointed out that if a prisoner is present while his correspondence is being searched :-

“(1) he may intimidate or distract the searching officer, or observe his technique for use on another occasion, and -

(2) he cannot, in the last resort, prevent the officer from reading what he wants to read.”

13. Conclusion

In my judgment legal professional privilege does attach to correspondence with legal advisers which is stored by a prisoner in his cell, and accordingly such correspondence is to be protected from any unnecessary interference by prison staff. Even if the correspondence is only inspected to see that it is what it purports to be that is likely to impair the free flow of communication between a convicted or remand prisoner on the one hand and his legal adviser on the other, and therefore it constitutes an impairment of the privilege. However, as the Whitemoor and Parkhurst escapes demonstrated, it is essential to maintain security in closed prisons, and to that end section 47(1) of the Prison Act permits rules requiring that periodically, and without prior notice, cells and everything therein be thoroughly searched. That necessarily involves examining correspondence so far as necessary to ensure that it is in truth bona fide correspondence between the prisoner and a legal adviser and does not conceal anything else. In the words of Steyn L.J. in Leech there is a “self evident and pressing need” for that degree of scrutiny. That was not something which was being directly addressed in the case of Campbell. It follows that in my judgment what is prescribed in the annex to the governor’s order is no more than the minimum interference with the prisoner’s rights which is necessary to ensure that security is maintained. Once it is accepted that there are powerful arguments for correspondence being examined in the absence of the prisoner, and in my judgment there are, the only remaining issue is how best to re-assure prisoners, and especially remand prisoners, that cell-searchers are not exceeding their instructions. That is obviously a difficult question, but it is not, in my judgment, a question for decision by this or any other court. I would therefore dismiss this appeal.

LORD JUSTICE JUDGE:

When serving the custodial sentences imposed to punish them for their crimes, convicted criminals do not become outlaws, outside or beyond the protection of the law. It is axiomatic that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.” ( Raymond v Honey [1983] 1 AC 1)

Constant repetition of this principle may suggest that the restriction of the prisoner’s rights is less extensive than in reality it is. Incarceration automatically means that the prisoner is deprived of his right to liberty and freedom of movement and association. Moreover he is locked up with other criminals in penal institutions for which the Home Secretary is responsible, and the administration of the prison system - with the need for proper security of the convicts as well as responsibility for providing every prisoner with a reasonably humane environment - inevitably curtails his rights yet further.

Sometimes those in custody are unconvicted. Although they are presumed in law to be innocent, they too are deprived of many basic rights enjoyed by ordinary citizens. The administration of the prison system provides some small practical acknowledgement of the difference between the convicted and the unconvicted prisoner, but the harsh reality is that the vital rights of liberty and freedom of association and movement are removed for every prisoner, whether convicted or unconvicted.

The regulation and management of prisons and similar institutions is based on section 47 of the Prison Act 1952, as amended, which provides “the Secretary of State may make rules for the regulation and management of prisons ..... and for the classification, treatment, employment, discipline and control of persons required to be detained therein”.

The relevant facts and regulatory framework are set out in the judgment of Kennedy LJ and I shall not repeat them. I merely observe that it is not the Secretary of State, nor the operation of powers granted by section 47 of the 1952 Act which deprives prisoners of their rights to liberty and freedom of movement and association. That is a consequence of the order of a Court.

There is no catalogue of civil rights which remain available to the prisoner. Some have been identified beyond argument by earlier decisions of the Courts. Some are so obvious that they would immediately be included in a list if anyone for one moment doubted their existence, for example, the right not to be subjected to physical or psychological assault or torture. As time goes by further rights will no doubt be recognised. In view of the axiomatic principle however the starting point is to assume that a civil right is preserved unless it has been expressly removed or its loss is an inevitable consequence of lawful detention in custody.

In these appeals recognition is sought for two rights, not previously acknowledged. In the cases of Simms and O’Brien it is submitted that as a manifestation of the right to freedom of expression each prisoner is entitled to be visited by and to communicate orally about his case with a journalist who has shown an interest (whether out of friendship or a strictly professional interest in the case) and for the journalist to use material obtained in this way in the course of his profession. In Main it is contended that the prisoner’s right to confidentiality of his legal correspondence extends to preclude the searching of his cell by prison officers in his absence.

The prisoner’s right to untrammelled access to the Courts was established in Raymond v Honey . Inseparable from this right is the further right to unimpeded access to legal advice ( R v Secretary of State for the Home Department, Ex Parte Anderson [1984] 1 QB 778.

In R v Secretary of State for the Home Department, Ex Parte Leech [1994] QB 198 the court was concerned with communications by a prisoner with his legal advisors. The issue was the censorship of the prisoner’s correspondence with his solicitors in proceedings which were not then current but in contemplation. The principle of the confidentiality of such correspondence was upheld in relation to two separate administrative activities by the prison authorities. First, it was held that there was no power to stop or prevent such letters being sent and second, although the prison authorities were empowered to examine such letters in order to check that they were what they purported to be, this power had to be deployed to the minimum extent necessary for the purpose. On analysis the decision was only indirectly concerned with the general right of a prisoner to communicate with those outside the prison. The focus was communication with his legal advisors: hence therefore the reference to the decision in Campbell v UK [1993] 15 EHHR 137, upholding in the context of Article 8 of the European Convention of Human Rights strictly limited circumstances in which a prisoner’s correspondence to and from his lawyer could be read. Giving the judgment of the Court and following the logical progress of the route charted by the decisions in Raymond v Honey and Ex Parte Anderson, Steyn LJ observed

“The question is whether section 47 by necessary implication authorises the making of a rule of the width and scope of r33(3)..... By necessary implication (it) confers a power of rule making which may limit a prisoner’s general civil rights in respect of the confidentiality of correspondence.”

He continued

“Section 47(1) of the Act of 1952 confers a power of rule-making which may limit a prisoner’s general civil rights in respect of the confidentiality of correspondence..... It...does not authorise the making of any rule which creates an impediment to the free flow of communications between a solicitor and a client about contemplated legal proceedings.”

Steyn LJ summarised the conclusion:

“..... 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.”

This decision served to underline that the Court would not permit inappropriate interference with the rights of any prisoner unless expressly sanctioned or indisputably implied. Although Leech also provides plain authority for the proper general approach to rules and standing orders created under section 47 it cannot be used by straightforward analogy to evaluate the rights of the prisoner to communicate with those who are not his legal advisors. Nevertheless, stripped to its essentials, Mr Owen’s argument in Simms and O’Brien is that the reasoning which prohibits limitations on the rights of the prisoner to access to legal advice would apply equally to restrictions on the right of freedom of expression, of which one manifestation is access to the media. His argument in Main involved detailed analysis of the principles relating to legal correspondence to be found in Leech and Campbell.

In Leech the Court rejected in robust terms the suggestion that the prison authorities enjoyed an unrestricted right to read correspondence between the prisoner and his legal advisors. Any such power would constitute a “considerable diminution” to or have a “chilling effect” (see per Dickinson J in Solosky v The Queen 105 DLR (3d) 745) on the exercise of an essential right. In Campbell when such correspondence was “opened as a matter of routine”, the ECHR concluded in the context of Article 8 that such readings were permissible only in exceptional circumstances where there was reasonable cause to suspect abuse, an approach endorsed in Leech by approving reference to the “concrete” points identified in Solosky. Furthermore, in Campbell the ECHR was unimpressed by a series of arguments advanced to justify routine examination of correspondence. These included possible problems with the “professional competence and integrity” of legal advisors, and risks attached to the misuse of unopened correspondence with solicitors to “smuggle forbidden material into and out of prison”. However the Court simultaneously recognised that “some measure of control over prisoners’ correspondence is called for and is not of itself incompatible with the Convention, regard being paid to the ordinary and reasonable requirements of imprisonment”.

Two further significant decisions of this Court require attention. In R v Secretary of State for the Home Department Ex Parte O’Dhuibir & Anr, [Unreported, 27th February 1997] the issue of communication was considered in the context of visits arranged for exceptional risk prisoners. Closed conditions for these visits were deemed necessary. A glass screen was placed between the prisoner and his visitor which created obvious practical difficulties of communication both between the prisoner and his legal advisors and, separately, between the prisoner and his family. The Court concluded that the asserted right of unimpeded physical access to legal advisors had not been established. More important, notwithstanding the Court’s concern about the effect of the screen on family relationships, Gibson LJ observed

“As for the claimed basic right of a prisoner to an open visit with his immediate family, Mr Fitzgerald accepted that no authority established the existence of such a right. In this area there is of course the right recognised by Article 8(1) of the European Convention on Human Rights, that is to say the right to respect for one’s private and family life; but that is subject to the recognition in Article 8(2) that there may be interference by a public authority with the exercise of that right if such interference is in accordance with the law and is necessary in a democratic society in the interest of national security and public safety and for the prevention of disorder or crime. There are also strong humanitarian and health reasons why it is desirable that prisoners should maintain relationships with their families...... Mr Fitzgerald is not complaining of a breach of the prison rules. He asserts a fundamental right of physical contact between prisoner and his family. In my judgment that right is not established...... Rule 33(1) does allow the imposition of restrictions upon communications between a prisoner and others.”

In R v Secretary of State, Ex Parte Bamber [Unreported, 15th February 1996] the Court concluded that it was permissible for the authorities to prohibit a convicted prisoner from making a telephone call to the media so that his spoken voice could be available for use in programmes prepared for the radio or television. It was not suggested that r34(9)(c) was invalid. Plainly Bamber’s freedom of expression was restricted. Nevertheless the restriction was upheld in the context of reliance on Article 10(1) of the European Convention of Human Rights (the right to freedom of expression) and Derbyshire County Council v Times Newspaper [1993] AC 534 (where freedom of expression was under consideration). The claim advanced on behalf of Bamber was that he was entitled to freedom of expression “to rectify what he perceives to be a miscarriage of justice”. As Aldous LJ observed

“Such rules amount to restriction in the way that a prisoner may express his views and feelings. However I cannot see how they could be unlawful and unreasonable in circumstances where the prisoner can communicate his views and feelings in writing and can seek permission in exceptional circumstances from the Governor to enable a telephone call to be made.”

Therefore in O’Dhuibir the Court concluded that communication between a prisoner and members of his immediate family could lawfully be restricted so as to prevent physical contact, and for speech to be permitted only through a screen, notwithstanding that these limitations constituted a huge interference with normal family life and the ability of members of the family to communicate with each other. In Bamber restrictions on the right of communication between a prisoner and representatives of the media outside the prison were upheld. O’Dhuibir also confirmed the principle applied in Leech and Campbell that in very limited circumstances some restriction in the communications between the prisoner and legal advisors has also to be accepted. Given the inevitable restriction on ordinary rights which follow incarceration identified earlier in this judgment, it follows that prisoners do not enjoy an absolute right to freedom of expression or communication. In my judgment if communications within the prison between the prisoner and his family and the prisoner and his legal advisors may properly be curtailed, journalists cannot possibly form a special category of visitors immune from restrictions. Indeed Mr Owen rightly conceded that freedom of expression in the form of unlimited entitlement to communicate with anyone as and when the prisoner wished was not absolute: some restrictions were inevitable.

With the advantage of the judgments in O’Dhuibir (which were not available to Latham J) in my judgment the first question for decision is whether the restrictions now under consideration were ultra vires. In the cases of Simms and O’Brien the starting point is simple. Communications by prisoners, convicted or not, are seriously curtailed. To take a simple example, they cannot just pick up pen biro or pencil and paper and write letters at will to their families, and for many, this must come as a most serious deprivation, potentially damaging to the members of the prisoner’s family as well as to the prisoner himself. Similarly, with family visits: it is enough to note that a prisoner’s mother and father, or his wife and children cannot see him, nor he them, as and when any of them wishes. Again these are most serious deprivations, consequent on the order of imprisonment.

There are separate rules governing arrangements for access to and communication with legal advisors and letters and visits of a personal nature, as well as visits by journalists. In relation to communications between the prisoner and the media these restrictions are expressly provided by section A paragraphs 37 and 37A of Standing Orders which carefully distinguish between the visiting journalist who is a friend and the journalist visiting in a professional capacity. Save in exceptional circumstances visits are restricted to relations and friends, and legal advisors. It therefore seems reasonable that the conditions for the visit by a journalist friend should be similar to those which apply to a visit by a friend in any other walk of life, and further, that the accident to friendship with a convicted prisoner should not create a professional advantage over a journalist who is not. The visit in a professional capacity is subject to control by the Governor for powerful reasons of security and discipline, as well as the collective interests of the inmates, the risks to which may not be fully appreciated by even the most laudably motivated journalist. Even so the prison regime does not impose an absolute prohibition on such visits: in particular cases, and subject to stringent conditions, an exception may be made.

Both Simms and O’Brien are anxious to continue their contact with journalists who appear to be sympathetic to their contentions that they have been wrongfully convicted. Both appreciate the potential value of media support and neither enjoys the advantage of continuing legal advice.

Whenever the journalists visit these prisoners they are able to speak as they wish about their cases, to provide information, elucidate relevant facts and indeed to enlist support. Equally the prisoners are permitted to write to the journalists and convey the same information by letter. If they choose the journalists may discuss and highlight the cases in the media and campaign for the case to be referred to the Court of Appeal Criminal Division and for the convictions to be quashed. Therefore the single relevant restriction on the prisoner’s freedom of expression is that although the prisoner may say what he likes to the journalist, the journalist is required to undertake not to use for professional purposes any material provided at the interview. This plainly creates some difficulties for the responsible journalist, particularly in relation to information provided and contentions advanced by the prisoner. It is argued that this regime interferes with the prisoner’s fundamental right of freedom of expression, because faced with the restriction the journalist (not the prisoner) would be less enthusiastic about visiting the prisons and discussing the case orally with the prisoners. If the journalist in question is a genuine friend, and visiting as such, one wonders why. If he is visiting as a professional journalist, or intending to use the material obtained at interview in a professional capacity, it is difficult to accept that the limitation on the entitlement of the journalist to publish the contents of his communications with the prisoner infringes the prisoner’s right of free expression, at any rate in any way which significantly increases the inevitable interference with that right which follows incarceration. As the prisoner’s ability to communicate with journalists both orally and in writing is preserved, what in reality is at stake is the relationship between the journalist and those responsible for the secure administration of the prison. The potential for increased problems with security and discipline, staff, other inmates, and after conviction, with victims or their families, all underline the need for control of such visits to be vested in and exercised by the Governor. This is what the regulatory framework is intended to achieve and in the circumstances I have concluded that the restriction currently under consideration is not ultra vires.

Having concluded that the restriction is not ultra vires, I have examined the question whether the required written undertaking could be described as irrational or disproportionate. The sensible reasons for these limited restrictions are summarised by Kennedy LJ in his judgment. Without repeating the salient features the arguments based on irrationality and lack of proportion are not sustained.

Some further support for this conclusion is founded in the decision in the United States Supreme Court in Turner v Safley 482 US 76 where in the context of the tension between the provisions of the First Amendment and the rights of prisoners as individuals the Court concluded

“when a prison regulation impinges on an inmate’s constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if ‘prison administrators..... and not the courts (are) to make the difficult judgments concerning institutional operations”

and continued by drawing attention to a relevant factor in the determination of the reasonableness of any restriction, touched on by Aldous LJ in Bamber,

“where avenues remain available for the exercise of the asserted rights ....... courts should be particularly conscious of the ‘measure of judicial deference owed to corrections officials ...... engaging the validity of the regulation”.

I therefore agree that the appeal by the Secretary of State in the cases of Simms and O’Brien should be allowed.

Turning now to the case of Main and the search of his cell, the evidence which followed the Whitemoor and Parkhurst breakouts by dangerous convicts demonstrated an urgent need for random searching of occupied cells in closed prisons. The administrative framework was accordingly adapted. It is not intended that the prisoners’ correspondence with his lawyers should be bereft of safeguards. This correspondence should only be read to the limited extent necessary to check that it is what it purports to be and to ensure that illicit material is not concealed. For that purpose the prisoners’ assertions are not, by themselves, sufficient and there are powerful reasons which require the search of the cell to take place in his absence. Quite apart from the significant risk of intimidation some prisoners would take full advantage of any knowledge of how the search is carried out to improve their efforts at concealment.

That brings me to the prisoners’ letters. Many prisoners would greatly resent their personal letters being read by prison officers at least as much, if not more, than letters from their lawyers, many of whom will have ceased to correspond once the appeal system had been completed. The relevant provision is unequivocal. “Correspondence, particularly that issued under Prison Rule 37a, is to be searched but not read”.

This arrangement adds to rather than substitutes for the continuing occasions when, subject to the limitations already acknowledged in the existing authorities, correspondence may be read. In my judgment these random cell searches in the absence of the prisoner are well within the powers of the prison authorities as part of the new arrangements for security currently forced on them, and are not ultra vires; and Mr Owen did not contend otherwise.

Prisoners whose cells are searched in their absence will find it difficult to believe that their correspondence has been searched but not read. The Governor’s order will sometimes be disobeyed. Accordingly I am prepared to accept the potential “chilling effect” of such searches. I also note the recommendation by the Prison Ombudsman that the prisoner should be present while his legal papers are being searched, and would also be prepared to accept that many prisoners would not abuse this arrangement. Unfortunately some, including the most dangerous would, and they would complain loudest about any selection system which involved the authorities choosing the prisoners who might be permitted to be present for any part of the search. Main of course is a convicted prisoner. The position of unconvicted prisoners remanded in custody and awaiting trial is very sensitive. Again however the problem is that if it is appropriate for them to be remanded in a closed prison at all, then their cells cannot be realistically be exempted from random searches or they will become the collection point for illicit property, and open to abuse, if not by unconvicted prisoners themselves, by some of the other inmates. All these important considerations have to be set in the context of the expressed concerns of the prison authorities summarised by Kennedy LJ. In my judgment the administrative arrangements for the random search of prison cells in the absence of the prisoner are not a disproportionate or irrational response to the alarming problems of prison security demonstrated by the breakouts at Whitemoor and Parkhurst. The authorities themselves must do their best to ensure that those responsible for the searches obey the categoric instruction that the letters are not to be read, unless the particular case falls within the minimal interference accepted in Leech. No doubt too they will bear in mind the recommendation of the Ombudsman and discontinue the present arrangements as soon as practicable either generally, or in those particular institutions where it is not essential.

I therefore agree that the appeal by Main should be dismissed.

LORD JUSTICE CHADWICK: I agree with the orders of my lords.

ORDER: Order for costs against the respondent applicants; legal aid taxation in all three cases; leave to appeal refused in all three cases.