QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of : DENNIS ANDREW NILSEN
|- and -
|(1) THE GOVERNOR OF HMP FULL SUTTON
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Steven Kovats (instructed by Treasury Solicitor) for the Defendants
Crown Copyright ©
Mr Justice Maurice Kay :
The statutory context
"1. All powers and jurisdiction in relation to prisons and prisoners which before the commencement of the Prison Act 1877 were exercisable by any authority shall, subject to the provisions of this Act, be exercisable by the Secretary of State.
4.(1) The Secretary of State shall have the general superintendance of prisons and shall make the contracts and do the other acts necessary for the maintenance of prisons and the maintenance of prisoners."
Section 47(1) then 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."
For present purposes, the relevant rules are the Prison Rules 1999 as amended by the Prison (Amendment) (No. 2) Rules 2000, the material parts of which provide:
"34(1). Without prejudice to sections 6 and 19 of the Prison Act 1952 [visits by boards of visitors and magistrates] and 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, except with 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 the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed –
(a) does not interfere with the Convention rights of any person; or
(b)(i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the Convention right to be interfered with; and
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are –
(a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) the protection of health or morals;
(e) the protection of the reputation of others;
(f) maintaining the authority and impartiality of the judiciary; or
(g) the protection of the rights and freedoms of any person…..
(8) In this Rule…
(c) references to Convention rights are to the Convention rights within the meaning of the Human Rights Act 1998."
"General correspondence……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 inmate's crime or past offences or those of others, except where it consists of serious representations about conviction or sentence or forms part of serious comment about crime, the processes of justice or the penal system…."
The decision letter
"The Prison Service has now read the manuscript…..It has decided not to allow the manuscript to be passed to Mr. Nilsen and because of this I am returning the manuscript to you.
The Prison Service considers that the manuscript is material intended for publication, that it is about Mr. Nilsen's offences and that it does not consist of serious representations about a conviction or sentence and does not form part of serious comment about crime, the processes of justice or the penal system. Mr. Nilsen is not permitted to send such material out of prison: Standing Order 5 section B paragraph 34(9)(c); Standing Order 4, paragraph 40. Because the manuscript has been out of prison for a number of years, it is likely that copies have been made by third parties. However, to date Mr. Nilsen has not caused the manuscript to be published and has indicated that he wishes to do further work on it. The Secretary of State has no reason to believe that any such further work would alter the character of the manuscript.
The only way in which the Secretary of State can in practice realistically seek to prevent Mr. Nilsen from publishing such material is by withholding the manuscript from Mr. Nilsen pursuant to rules 34 and/or 70 of the Prison Rules….and/or paragraph 40 of Standing Order 5B.
The reasons why the Secretary of State has concluded that publication of the manuscript, or of a revised version of it, would be contrary to paragraph 34((9)(c)…..are as follows.
The manuscript is about Mr. Nilsen. But it is also about his offences: the offences themselves, how Mr. Nilsen came to commit them, and how he is now being punished for them. The offences are an integral part of the manuscript.
The manuscript does not consist of serious representations about conviction or sentence or form part of serious comment about crime, the processes of justice or the penal system. Rather it is a platform for Mr. Nilsen to seek to justify his conduct and denigrate people he dislikes. The Secretary of State believes that his decision is in accordance with Article 10 of the European Convention on Human Rights. He accepts that withholding the manuscript is an interference with Mr. Nilsen's freedom of expression. But he considers that this is justified in the circumstances.
The withholding of the manuscript is prescribed by law, for the reasons set out above.
The withholding of the manuscript pursues a legitimate aim, namely the protection of morals, the protection of the reputation or the rights of others and the protection of information received in confidence. The manuscript contains several lurid and pornographic passages. It contains highly personal details of a number of Mr. Nilsen's offences. It seeks to portray Mr. Nilsen as a morally and intellectually superior being who justifiably holds others in contempt. Its publication would be likely to cause great distress to Mr. Nilsen's surviving victims and to the families of all his victims, and would be likely to cause a justifiable sense of outrage among the general public.
The withholding of the manuscript is a proportionate response in the circumstances. There is a pressing social need to avoid the harm described above. No lesser measure will avoid that harm. Mr. Nilsen is free to send out writings that comply with the terms of the Prison Rules and Standing Orders.
In reaching his decision, the Secretary of State has borne in mind that Mr. Nilsen is serving a whole life tariff. The Secretary of State's present view is that for as long as Mr. Nilsen remains in prison, preventing the publication of the material in the manuscript is justified, no matter how long that may be."
The grounds of challenge
"(1) Everyone has the right to freedom of expression. This right shall include 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 cinema enterprises.
(2) The exercise of these freedoms, since its 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."
Ground 1: Article 10 and paragraph 34(9)(c)
"…..the expression 'prescribed by law' requires first that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Experience shows, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the evolving views of society. A law which confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference. The court also accepts that the level of precision required by domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the status of those to whom it is addressed."
In my judgment, it is abundantly clear that section 47 enabled the Secretary of State to promulgate Rule 34 which confers upon him a discretion to impose "any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons", provided that he considers that it is Convention compliant. Paragraph 34(9)(c) is the result of such an exercise of discretion.
"Passages in the speech of Lord Steyn….and Lord Hobhouse of Woodborough….in ex parte Simms lend some support to [the] submission that it is only lawful to restrict a prisoner's freedom of expression to the extent that this is both necessary and proportionate in the interests of maintaining order and discipline in prison. On considering the speeches as a whole, however, I have concluded that they recognised that a degree of restriction of a right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of the prison, but as part of the penal objective of deprivation of liberty. How far freedom of expression could justifiably be restricted was a question of proportionality. In ex parte Simms it was disproportionate to prevent interviews with journalists that were directed to gaining access to justice.
Lord Steyn said, at page 127:
'The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects a prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present case is qualitatively of a very different order. The prisoners are in prison because they are presumed to be properly convicted. They wish to challenge the safety of their convictions….In principle it is not easy to conceive of a more important function which free speech might fulfil.'
I consider that this passage supports the [Secretary of State]. Lord Steyn's example of justifiable interference with freedom of speech attributed the justification both to the punitive objective of deprivation of liberty and to the need of discipline and control in prisons.
In his short concurring speech, Lord Hoffmann said, at page 132:
'What this case decides is that the principle of legality applies to subordinate legislation as much as to Acts of Parliament. Prison Regulations expressed in general language are also presumed to be subject to fundamental human rights. The presumption enables them to be valid. But, it also means that, properly construed, they do not authorise a blanket restriction which could curtail not merely the prisoner's right of free expression but its use in a way which could provide him with access to justice.'
This suggests to me that Lord Hoffmann contemplated as justifiable a degree of deprivation of the right of free expression as part of the punitive regime.
That Lord Millett was of this opinion is plain from the following passage of his speech at pages 144 to 145:
'It is an inevitable and intended consequence of a custodial sentence that the prisoner should be deprived of the right to be visited by anyone he likes when and as often as he wants. Visits by close members of the prisoner's family are severely curtailed. But a total ban of visits, even by journalists, could not be justified. For the reasons given by my noble and learned friend, Lord Steyn, a refusal to allow the prisoner to be interviewed by a responsible journalist investigating a complaint that he had been wrongly convicted would strike at the administration of justice itself.
……..the approach under the Strasbourg jurisprudence and under English domestic law is the same. The consequences that the punishment of imprisonment has on the exercise of human rights are justifiable provided they are not disproportionate to the aim of maintaining a penal system designed both to punish and to deter. When the consequences are disproportionate, special arrangements may be called for to mitigate the normal effect of deprivation of liberty.' "
In my judgment, that analysis and exposition is of considerable importance in the context of the present case. It shows that, contrary to Miss Foster's submission, the regulatory powers are not confined to good order and discipline within the prison or prison security. The principles in Mellor fell to be applied by Elias J in R (Hirst) v. Secretary of State for the Home Department  EWHC 602 (Admin)  1 WLR 2929. There, the policy which in all circumstances denied a prisoner the right to contact the media by telephone whenever his purpose was to comment on matters of legitimate public interest relating to prisons and prisoners was unlawful. However, that was the result of a proportionality exercise applied to a very different form and content of communication. If further authority were required to support the proposition that the regulatory power may extend beyond the prison walls, it can be seen in the Strasbourg admissibility decision of Bamber v The United Kingdom (Application 33742/96) where the Commission stated (page 7 of transcript):
"…….The restriction in question pursued proportionately a legitimate aim under the terms of Article 10 para 2….in that it sought to control communications with the media with a view to the prevention of disorder, and the protection of morals and/or the rights of freedoms of others."
Moreover in Secretary of State for the Home Department v. Central Broadcasting Limited  EMLR 253 (which also concerned the affairs of Mr. Nilsen) Aldous J said at first instance (at page 266):
"The broadcasting of an interview with Dennis Nilsen carries with it to all the dangers which the Home Office policy is designed to guard against, namely the possibility of causing distress, enhancing notoriety and encouraging sensationalist journalism. It is, of course, a wholly different matter for such material to be used in support of research by professionals into the detection of criminals…..I….accept that the policy as a general policy is right."
Subsequently dismissing an appeal, the Master of the Rolls, Sir Thomas Bingham, nevertheless made light of the factor of distress to relatives of those who suffered at the hands of Mr. Nilsen. He observed (at page 271) "…All that anyone has to do is to switch off the programme.".
However, that obiter comment is not reflected in the more recent obiter observation of Lord Scott of Foscote (dissenting) in R (Pro Life Alliance v. British Broadcasting Association  UKHL 23  2 WLR 1403 at para 91 where he opined that "the rights of others" within the meaning of Article 10(2)
"need not be to limited to strictly legal rights the breach of which might sound in damages and is well capable of extending to a recognition of the sense of outrage that might be felt by ordinary members of the public who in the privacy of their homes had switched on the television set and been confronted by gratuitously offensive material."
Ground 2: autobiographical or personal material
"The concept of self-expression of the individual through description of a person's life events is at the heart of Article 10. The wording of the Article recognizes that the communication of information is as important as the communication of ideas. Standing Order 5B, however, prohibits any relation of the facts of the inmate's offending life save in the context of representations or general comment about criminology or penal matters."
Mr. Kovats makes three submissions in answer to this. First, Article 10 does not grant preferential status to autobiographical writing and, in principle, there is no reason why it should. Secondly, it is possible to imagine cases in which a prisoner might seek to refer to his offences otherwise than in the contexts expressly permitted by paragraph 34(9)(c) but where it might be disproportionate to prevent him. For example, he may refer to them in a restrained and wholly repentant way. That would raise very different considerations. Thirdly, and along the same lines, the real issue is one of rationality and proportionality in the circumstances of a particular case and, in the present case, the prohibition is rational and proportionate for the reasons addressed earlier in relation to Ground 1 and later in relation to Ground 3.
Ground 3: rationality/proportionality in the particular circumstances of this case
"Once a manuscript complete or incomplete has been sent outside the prison walls, the Prison Service has no further control over it."
It is common ground that the Secretary of State would be unable to restrain publication by way of injunctive relief in such circumstances. Accordingly, the Secretary of State cannot achieve what he wants by the decision to impound the manuscript. Secondly, to a large extent the material which the Secretary of State seeks to suppress is already in the public domain in the form of Brian Masters' Killing for Company. The book was written with the cooperation of Mr. Nilsen and contains a significant amount of material in his direct speech. It includes lurid details of the offences. In the intervening years the media have repeated quantities of this material. It has been in the public domain for about twenty years. Thirdly, the fact that Mr. Nilsen wishes to work on his manuscript prior to publication and has not previously encouraged publication in its present form is consistent with his intending to put it into a less offensive form, acknowledging the Secretary of State's current objections. It would be possible for the authorities to prevent dissemination outside the prison after alterations if they had valid grounds to do so at a later stage. Fourthly, what is in issue is the return to a prisoner of material which he created in prison rather than the introduction of new material with which he has had no previous connection. The prison authorities were aware of the material in the prison for years without objection.
"…..the intensity of review is somewhat greater under the proportionality approach…..First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision – maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and consideration. Thirdly, even the heightened scrutiny test developed in R v. Ministry of Defence, ex parte Smith  QB 517,544, is not necessarily appropriate to the protection of human rights…..In other words, the intensity of review…is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."
The "legitimate aim" relied upon by Mr. Kovats is the prevention of publication which is objectionable on one or more of the grounds set out in Article 10(2), in particular
"the prevention of disorder or crime,….the protection of health or morals,…..the protection of the reputation or rights of others,…..preventing the disclosure of information received in confidence."
In the course of submissions there was much debate about deference and proportionality. In this context it is necessary to keep in mind that the Prison Act 1952, section 1, vests all relevant powers and jurisdiction in relation to prisons and prisoners in the Secretary of State; that by section 47(1) he has been granted the power to make rules for the regulation and management of prisons and for the treatment , discipline and control of prisoners; and that by the amended Prison Rules he may impose "any restriction or conditions, either generally or in a particular case, upon the communications to be permitted between a prisoner and the other persons", subject to consideration of Convention rights and proportionality. Paragraph 34(9)(c) of Standing Order 5 owes its existence to that statutory context. It is, in effect, an embargo on material which is intended for publication unless it falls within the exceptions expressed in (c).
MR JUSTICE MAURICE KAY: In the case of Nilsen, the application for judicial review is refused for reasons contained in judgment that is handed down today. I understand there is no attendance. Counsel have agreed a form of order which will be submitted later today.