England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE HOOPER)

		Royal Courts of Justice Strand London, WC2
		9th October 2003

Thursday, 9th October 2003
1. LORD JUSTICE SEDLEY: This appeal from the dismissal by Hooper J of an application for judicial review comes before the court by permission of Carnwath J. The issues, as they had crystallised, were whether it was lawful for the prison authorities at Full Sutton, a high security prison, to insist that prisoners apply in writing at least a day in advance for permission to receive or take legal documents with them on legal visits, and to make permission to receive or hand over legal documents in the absence of such notice a matter for a prison officer's discretion in "exceptional circumstances".
2. The power to have a policy governing the transmission of documents between prisoners and their solicitors arises under the Prison Rules 1999 as amended, which in their material parts provide as follows:

"34.(1) ... except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, without the leave of the Secretary of State or as a privilege under rule 8.

(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon communications to be permitted between a prisoner and other persons if he considers that the restriction or condition imposed -

(a) does not interfere with the convention rights of any person ...

...

35B(1) The governor may arrange for a permanent log

to be kept of all communications by or to a prisoner.

...

38.(1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer.

(2) A prisoner's legal adviser may, subject to any directions given by the Secretary of State, interview the prisoner in connection with any other legal business out of hearing but in the sight of an officer.

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

...

(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.

...

(6) In this rule ... 'illicit enclosure' includes any article possession of which has not been authorised in accordance with the other provisions of these Rules and any correspondence to or from a person other than the prisoner concerned, his legal adviser or a court.

...

70. No person shall, without authority, convey into ... or deposit in a prison, or convey ... out of a prison, or convey to a prisoner ... any ... article whatever. Anything so conveyed ... or deposited may be confiscated by the governor."

3. The essential Convention right in question is, as is common ground, the prisoner's right to confidential consultation with a lawyer, which forms part of the article 6 right to a fair trial. Before us today, Mr Kovats for the respondent, without opposition from Ms Krause for the appellant, has formulated the relevant law in this way. Article 6 gives an unqualified right to a fair hearing (whether, I would add, at a criminal trial or appeal or before the Parole Board). To give this right substance, ancillary rights are recognised in the Convention jurisprudence which may be qualified where necessary, though not so as to subvert the principal right. The general rule is therefore that there must be free communication between lawyer and client, even where the client is in prison. But in a high security prison special problems may have to be addressed, especially bearing in mind that legal visits do not have to be conducted by professional lawyers and that even professional lawyers may be unwittingly used by shrewd prisoners. The rules and policies governing the transmission of legal documents must accordingly hold the rights of the individual and the interests of society in a proper balance. For my part, I would accept this as a sound account of the law which, by virtue of the Human Rights Act 1998, a public authority such as the Prison Service must abide by.
4. In such a situation a policy is a legal and practical necessity in order to ensure that the powers of control are applied lawfully and consistently as between prisoners but with due regard for particular circumstances. In the prison system, however, policies are typically, and understandably, promulgated in the form of orders. This makes it important that the flexibility which every lawyer knows is built into a policy should be spelt out so that officers and prisoners understand it, and should not be left to implication or mere ad hoc discretion.
5. It is necessary at this stage to say something about the trouble Hooper J had in ascertaining what the prison's policy was in regard to the passing of documents on legal visits. Thirteen paragraphs of his judgment are devoted to the chaotic and conflicting accounts derived from official documents, written evidence about actual practice and assertions made by counsel for the Home Office on instructions. Not even an intelligent and diligent prisoner, or for that matter his solicitor, could have had any reliable idea as to what was going to happen in relation to legal documents from one visit to the next; and the experience of the appellant's own solicitors, who had encountered a succession of arbitrary obstructions, each withdrawn and then replaced by another, confirmed the state of affairs.
6. In my judgment, Hooper J would have been justified in granting relief against the Home Office on the ground that at Full Sutton the transmission of prisoners' legal documents was being impeded on the basis of no ascertainable or intelligible policy whatever. Instead, with characteristic concern to resolve problems rather than simply react to them, he drew out of the conflicting rules and practices, with the help of Treasury counsel, what he proposed to treat as the material elements of the policy under challenge.
7. Ms Krause, for the appellant, has made a late application to this court for the admission of further evidence. On examination, practically all of it relates to what was going on at Full Sutton prior to the hearing before Hooper J. It does nothing either to amplify what was already evident to him or to bring our information up-to-date. We have declined to admit it.
8. Mr Kovats has now put before the court, without objection, a new version of the prison's policy based on Hooper J's judgment. It takes the form of a Governor's Order, no 19/2003, captioned "Legal Documents" and issued on 22 July 2003 by the head of security in the prison. I will set it out in full and discuss it later in this judgment; but it will be more useful if I do so after I have considered Hooper J's decision on the material then before him.
9. The policy as found by Hooper J included (a) a general rule that application must be made for clearance of documents for transmission to the lawyer not later than the day prior to the visit, and (b) a proviso that in "exceptional circumstances" the senior officer might in his discretion allow the transmission of documents which had not been cleared in advance. I use the words "rule" and "proviso" because, although this was in name and in law a policy, the nature of prison discipline, as well as the legal and practical need for consistency, made it inevitable that this was how it would be operated in practice.
10. Hooper J concluded that the requirement of a day's notice was a lawful and proportionate response to the need to eliminate contraband and abuse, not least in the interests of prisoners, for whom last-minute searches would impede their legal visits. On the issue of discretion to allow late transmission of legal documents, he concluded that, although he was unhappy with the "exceptional circumstances" threshold, the policy in this respect too was proportionate and lawful.
11. His reasoning deserves to be set out in full:

"25. I have to decide whether the prison can properly require the checks to be made no later than the day before. Mr Chapman sets out what he says are the reasons for requiring this. He states (page 178, paragraph 5):

'Given the need for this level of security, both for the prevention of escapes and also for the protection of staff and other prisoners, items entering and leaving the prison have to be searched. The policy laid down by the Governor is to enable staff to have sufficient time in which to complete the search process. Given the number of visits that could take place, searching of documents on the day is likely to cause delays in the conduct of legal visits, given the need for the prisoner to be present when legal documents are searched. The prisoner cannot be in two places at once. HMP Full Sutton has in the opinion of the Secretary of State stuck a reasonable balance between the needs of the prisoner and the safe operation of a high security prison.'

26. Proceeding as I do on the basis that the policy as expounded by Mr Kovats accurately reflects the policy as implemented in Full Sutton, the decision to require prior authorisation is one, in my judgment, that can properly be characterised as a proportionate response to the problems caused both by security needs and the need to run prisons efficiently. The risk of delays to those involved in legal visits because of the need to carry out searches on the day and the need to carry them out without the pressure of time all militate in favour of the procedures implemented by Full Sutton. The procedures are, in my judgment, a proportionate response and within the range of responses which a reasonable Governor could properly choose against the background of the particular problems at Full Sutton. The fact, as Ms Krause tells me, that other prisons do not have such procedures is not decisive of the issue which I have to resolve. This part of her submission does not succeed.

27. I turn now to the second challenge. There will be occasions, as the evidence shows, when a prisoner is not warned that a legal adviser is coming to visit him until the day of the visit. There will be occasions when a prisoner wrongfully assumes that a solicitor will not wish to take a document away with him and has therefore, at the prior authorisation stage, put the document into the wrong category. The answer given by Mr Chapman is that the prisoner can then use the post. The claimant points out the dangers inherent in sending an original document by post. Not only is there the risk that an original and important document gets lost in the post, but prior to putting it into the post, the prisoner would want to have it photocopied. That photocopying, so the claimant says, will not take place in the presence of the prisoner. To put it another way, the claimant states that there are occasions when it is important to be able to hand over an original document directly to the solicitor. There will also be occasions when a solicitor has failed to notify a prisoner that he will want the prisoner to retain certain documents and for this reason the prisoner has failed to obtain the necessary authorisation. Mr Kovats justifies the requirement of exceptional circumstances by submitting that, in the absence of such a "threshold", prisoners would simply by-pass the procedures, the lawfulness of which I have already accepted. He also seemed to me to be suggesting that "exceptional circumstances" is not as high a threshold as it might otherwise seem to be. He also submits that the fact that a prisoner has not obtained prior authorisation raises a suspicion as to the nature of the documents now intended to be handed out or received.

28. It is obviously important that the procedures to be followed where prior authorisation has not been obtained should be reduced into writing so that everyone knows where they stand. When that occurs I hope that it will be considered unnecessary to use a threshold apparently as high as "exceptional circumstances". Nonetheless I do not feel able to say that the policy as now followed with that phrase included is disproportionate or outside the range of responses reasonably open to the decision maker. I can see that inflexibility of the kind suggested in this part of the procedures may be irritating both to the prisoner and to the legal adviser, but I cannot describe it as of such a nature that it will unlawfully fetter the three rights to which I have referred. This challenge also fails."

12. I have reached the conclusion that Hooper J was right on the first issue, albeit for reasons which were not adequately spelt out, but wrong on the second. Although things have now moved on, I will explain why I have reached these conclusions because the underlying issues remain relevant to the evaluation of the new policy.

The prior clearance rule

13. Hooper J accepted, as I would, the logic of the prior clearance rule as explained by Mr Chapman. But the fact still had to be faced that the general bar on transmission of documents not cleared a day in advance was a limitation on the fundamental right of prisoners to communicate freely and privately with their lawyers. It had therefore to be shown to be proportionate in the special sense established by the jurisprudence of the European Court of Human Rights. It is not enough, as this court has said in other contexts, for the judge simply to express the view that such an interference is proportionate. That is a conclusion, not a reason. It is necessary to consider and explain why it is proportionate.
14. The reason why, in my judgment, the prior clearance rule is a proportionate restriction on the right to communicate with a lawyer is this. First, it qualifies but does not negate the right. In particular, it respects the confidentiality of the contents of the documents. Secondly, it meets a clear and pressing social need, the suppression of abuse and contraband. Thirdly, it facilitates the conduct of legal visits by ensuring that they are not delayed by last-minute inspections of documents which the prisoner wants to hand over.
15. But -- and this is critical to the second limb to the case -- the rule would in my view be disproportionate if it were not accompanied by a proviso which ensured so far as possible that the limitation which it set on the right was flexible and not arbitrary. Without such a proviso it could not be said that the interference was the least necessary.

The exceptional circumstances proviso

16. The reason for this is that there will inevitably be many occasions when, say, a witness statement on which the solicitor needs the prisoner's instructions has arrived in the post on the morning of the visit; or the prisoner has been preparing a statement or a commentary on the evidence and does not have it ready until the day of the visit. If the trial or appeal is coming close, it may be a quite unjustifiable interference with the right of access to the court to refuse to let the document be handed over, unless there is some sound practical reason for saying that it cannot be cleared in time.
17. This is why Hooper J was right to express concern at the "exceptional circumstances" threshold. There is nothing exceptional about the instances I have given, but they are instances in which it would be unjustifiable, and therefore disproportionate, to refuse to allow the transmission of documents in the absence of some sound practical reason for refusal.
18. It is also why, in my judgment, it is not good enough to leave the operation of the proviso to the discretion of prison officers. I would hold that the material before Hooper J demonstrated a policy which was unlawful by virtue of section 6 of the Human Rights Act 1998 in that it permitted an unjustifiable restriction of Mr Cannan's Convention rights.

The new policy

19. I turn then to the policy now promulgated in the Governor's Order of 22nd July 2003. Because it is not adequately cross-headed and uses bullet points without numbers, I have interpolated some cross-heads and paragraph numbers for ease of reference.

"When a prisoner requests to hand out legal documents, take legal documents to the visit room for use by a legal representative, or receive legal documents from a legal adviser whilst on a visit, the following procedure must be followed:

[Handing out]

[1] The prisoner must apply on a standard wing application form to the wing/unit Senior Officer at least one day before the proposed visit. He must state whether all the legal documents are to be handed out to the legal representative or used by a legal representative but retained by the prisoner. The prisoner must identify any documents he wishes to hand out to enable staff to identify the relevant papers without disclosing the contents of the document.

[2] The prisoner must hand the legal documents to the wing staff allowing sufficient time for the documents to be searched prior to the visit taking place. Staff must search the documents in the presence of the prisoner, to confirm their legal status and check for any illicit enclosures. Legal documents must not be read.

[3] The documents must then be placed in a clear plastic property bag and sealed with a reception seal, in the presence of the prisoner. The seal number must be recorded on the application form. The documents, together with the form, must be handed back to the prisoner.

[4] If the unit/wing Senior Officer considers that the legal documents should be subject to an additional search using an x-ray machine, then the documents must be placed in a property bag and sealed in the presence of the prisoner before being taken to reception. Once the documents have been x-rayed, they will be returned to the prisoner with the application form.

[5] The documents and the completed application form must be taken to the visits room to ensure that the Senior Officer has evidence of authorisation for legal documents to accompany the prisoner. Visits search staff must check the seal number and that the property bag and seal have not been tampered with. If the property bag appears to have been tampered with staff must re-search the documents to confirm their legal status and check for any illicit enclosures before allowing the prisoner into the visits room. Legal documents must not be read.

[6] The Senior Officer in charge of visits must ensure that the prisoner has a signed authorisation form to take the documents into the visits room. The form must be retained by the prisoner throughout the visit as a record that the prisoner has permission to leave the visits room with the documents.

[7] If the prisoner wishes to hand out more legal documents than listed on the application form, written authorisation from the Senior Officer in charge of visits must be obtained. The form held by the prisoner must be amended accordingly. In the event that the Senior Officer will not permit additional documents to be handed out on the day, then the prisoner can still send them out.

[Search]

[8] Visits staff must search all legal documents being taken back to the wing/unit, in the presence of the prisoner, as part of the visit exit search procedure to confirm their legal status and check for any illicit enclosures.

Handing in documents

[9] When a legal adviser wishes to hand in documents as part of a legal visit, where possible, they should notify the prison in advance of the visit. They must specify what the documents consist of, although not revealing the content of the documents. This is to enable the documents to be identified when searched. Written authorisation to receive such documents must be given to the prisoner before the commencement of the visit. The document must accompany the prisoner to the legal visit.

[10] In exceptional cases, prisoners can retain legal documents brought into the visits room by a legal adviser without prior notice. In such cases prisoners must gain the written authority of the visits manager. The 'Request to Retain Legal Documents' form (attached) can be found on the Intranet at: 'Organisation - Full Sutton - Forms.

[11] Visits staff must search all legal documents being taken back to the wing/unit, in the presence of the prisoner, as part of the visit exit search procedure to confirm their legal status and check for any illicit enclosures. Legal documents must not be read.

This order supersedes Governor's Order No 83/2002."

20. Ms Krause has declined to address the detail of this policy. She has confined herself to a submission that it is non-compliant in its entirety with the Convention because it cuts down the relatively liberal transmission of legal documents which was formerly permitted at Full Sutton. She submits that there is no legal warrant for any restriction beyond flicking through documents in case they contain contraband. For the reasons I have given, the submission does not bear scrutiny. By declining to go beyond it Ms Krause has forfeited the opportunity to assist the court in considering the propriety of the system. What follows is therefore the product of discussion between Mr Kovats and the court.
21. Applying the principles set out earlier in this judgment, I would hold that the policy set out in the new Governor's Order, while a significant improvement on the previous state of affairs, is still legally deficient in the following respects.
22. First, given the understandable use of the verb "must" in what is a disciplined regime, paragraph [7] fails to afford sufficient flexibility. It deals only with the enlargement of an existing permission, granted on at least a day's notice, to hand out documents to a solicitor. It needs also to take account of the prisoner's entitlement to hand out documents when no prior notice has been given, so long as they can be cleared in time. It may be that the policy can conveniently replicate the policy for handing in documents, to which I now turn.
23. Secondly, paragraphs [9] and [10] do not sit well together. Paragraph [9] sets out a properly flexible policy for handing in documents. It does not require notice of a day or more - only notification in advance of the visit "where possible". This seems to me exactly right as practice within the law. But paragraph [10] cuts this down by limiting the handing in of documents without prior notice, even where prior notice has not been feasible, to "exceptional cases".
24. Mr Kovats accepts that it should not be so, but he suggests that by necessary implication it would be appropriately read and understood. I doubt this. Prison officers are not sophists; they are expected to do things by the book, and there is no reason why the book - the Governor's Order - should not spell out clearly what the policy is.
25. Take a situation which is almost certainly not exceptional but where refusal of permission to hand in would be hard to justify: on the morning of a prearranged visit, a substantial witness statement or probation report, crucial to an imminent hearing, arrives through the post at the solicitor's office. He takes it along to the interview, needing to leave it with the prisoner so that the prisoner can digest it and give prompt instructions about it. There may be nothing exceptional in the circumstances, but unless clearance is impractical in the light of resources and other prisoners' interests, it is plain that article 6 requires clearance to be given.

Conclusion

26. Since the appeal against Hooper J's decision is still formally before the court, I would allow it on the grounds I have indicated. I would grant no formal relief, since the policy to which the judgment related is now superseded.
27. The newly formulated policy answers some of the criticisms but, for reasons I have given, not all of them. It is not this court's task, however, to write policies for departments of state or institutions for which departments are responsible. The Home Office would nevertheless be wise to note this court's view, not least because, however hard it may be for a prisoner to challenge an improper refusal of permission to hand documents in or out in time for the challenge to be of any use, a claim for damages may follow a violation of a Convention right. It is very much better that prisoners' Convention rights and the interests of the public should be protected by clear, intelligible and Convention-compliant rules within each prison.
28. LORD JUSTICE LATHAM: I agree.
29. LORD JUSTICE MUMMERY: I agree. The appeal will therefore be allowed.

Order: Appeal allowed. No order for costs. Detailed assessment of the appellant's costs.