England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Leeds Combined Court Centre 1 Oxford Row Leeds LS1 3BG
		22/01/2010

Mr Justice Foskett:

Introduction

1. This case raises the not unfamiliar problem of the extent to which the legally recognised fundamental rights of a prisoner can be accommodated within the setting of a prison which has to protect itself from malevolent external influences and manipulation that can lead to significant internal problems.
2. The Claimant was convicted following a trial of the rape and murder in 1977 of his niece and was sentenced to life imprisonment on 1st March 1978. He was aged 23 at the time and the trial judge recommended a minimum term of 12 years to the Home Secretary, a recommendation endorsed by the then Lord Chief Justice, Lord Lane. The Home Secretary, however, set the minimum term as 20 years.
3. Given that the Claimant had been on remand for a period prior to his conviction and that period counted towards his sentence, the minimum term expired on or about 28 February 1997. However, he remains in prison, currently as a Category B prisoner in HMP Wakefield. He has been there since 11 November 2008 following his transfer from HMP Frankland where he had been since August 2005. Prior to that he had been in HMP Wakefield for a good many years.
4. As I understand it, the Parole Board considered his case in 1995, 1998, 2004, 2006 and 2008. No recommendation for his release was made on any of these occasions. On 4 April 2008 his "lifer manager" refused permission to re-categorise the Claimant to category C conditions. The reasons for these decisions are irrelevant to the matter before me save to note that there are, as I understand it, proceedings still pending in the Court of Appeal concerning these matters. Those proceedings involve a pending application to the Court of Appeal for permission to appeal against a decision of Underhill J given on 16 May 2008 (see [2008] EWHC 1318 (Admin)) refusing his renewed application for permission to apply for judicial review of the decision of the Parole Board in 2006 and of the decision of his "lifer manager" in April 2008. The background to the position in those proceedings as at 29 January 2009 is set out in the judgment of Thomas LJ reported at [2009] EWCA Civ 139 when the application was adjourned. The matter came back before Thomas LJ on 7 July 2009 and was adjourned again. The Claimant is represented in those proceedings by Ms Flo Krause who also represents him in the proceedings before me.
5. The relevance of those proceedings for present purposes is that the Claimant and those representing him (including, of course, Ms Krause) will have needed to communicate with him about the case from time to time.
6. Those proceedings are not the only proceedings in which the Claimant has become involved in the last year or so. By an application issued in December 2008 he sought to challenge by way of judicial review the effect of section 3 of the Representation of the People Act 1983 (as amended) whereby all non-remand prisoners who are in custody are declared "legally incapable of voting at any parliamentary or local government election" in the UK. He brought and continued those proceedings with the benefit of Legal Aid. The substantive application was heard by Burton J on 22 October 2009 and judgment was given on 28 October 2009: [2009] EWHC 2923 (Admin). Again, the relevance of those proceedings for present purposes is that he and those representing him (not, on this occasion, Ms Krause although the solicitors who instruct her in this matter, Messrs Chivers, acted for him in those proceedings) would have needed to communicate with him from time to time.
7. Another matter that has occasioned litigation instituted by the Claimant was the decision made on his arrival at HMP Wakefield that he be placed on what is known as "Level 1 of the Safeguarding Children procedures" the effect of which is to restrict him from having any contact, direct or indirect, with any child. At previous prisons he had been on Level 3 which enabled him to receive visits from friends and relations with children and permitted monitored contact through correspondence and telephone. Furthermore, all his personal photographs were removed from him.
8. The background to those proceedings, in which he was represented by Ms Krause, again instructed by Messrs Chivers, and in which the Governor of HMP Wakefield was represented by Mr Richard Thyne instructed by the Treasury Solicitor, is set out in the judgment of His Honour Judge Grenfell, sitting as a Judge of the High Court, reported at [2009] EWHC 2389 (Admin). Judge Grenfell heard the arguments in relation to that matter on 17 August 2009 and handed down the judgment on 2 October.
9. I am not entirely sure that I know the full litigation picture, but there are, I understand, other proceedings in, for example, Wakefield County Court in which the Claimant is or has been involved. There have been proceedings also in the Newcastle County Court.
10. The present application was lodged on 28 May 2009. Judge Grenfell gave permission to apply for judicial review in this matter following an oral hearing (at which Ms Krause appeared pro bono in relation to this matter) on 17 August 2009 (which took place at the same time as the application referred to in paragraphs 7 and 8 above). It arises out of complaints made by the Claimant about the way Wakefield Prison is dealing with certain correspondence which has been sent to him whilst at the prison. It concerns correspondence with his legal advisers and certain courts and constitutes what is known generally as "Rule 39 correspondence": see paragraphs 12-14 and 16 below. Since the grant of permission by Judge Grenfell the Claimant has obtained public funding to support the present application.
11. On 22 October 2009 Judge Grenfell refused to grant the Claimant an injunction by way of interim relief in which the Claimant sought an order that all correspondence be given to the Claimant "provided it is clear that it is covered by Rule 39 or that the [prison] be prohibited from interfering with it whether or not it is handwritten." The reasons given for the refusal of the application for the injunction were (a) that the Claimant continues to have the alternative remedy of the prison complaint procedure should there be any further infringement of Rule 39, (b) that it was made clear at the hearing for permission that the fact that a letter is addressed in handwriting or typescript makes no difference to whether the letter is subject to Rule 39 and (c) it would not be proportionate to grant an injunction pending the substantive hearing.

Rule 39 of the Prison Rules 1999 and Prison Service Order 4411

12. There is a history to Rule 39 of the Prison Rules 1999 which is the governing rule in the present context. That history is well documented and I do not propose to extend this judgment by reciting it. An authoritative account of the background can be found in the speech of Lord Bingham of Cornhill in Regina (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paragraphs 1-11.
13. Rule 39 provides as follows:

"(1) A prisoner may correspond with his legal adviser and 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 enclosures shall be dealt with in accordance with the other provision of these 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.

(5) A prisoner shall on request be provided with any writing materials necessary for the purposes of paragraph (1).

(6) In this rule, "court" includes the European Commission of Human Rights, the European Court of Human Rights and the European Court of Justice; and "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."

14. This rule has been supplemented by Prison Service Order 4411 ('PSO 4411'), issued on 5 September 2007, the part dealing with 'Legal and Confidential Correspondence' being in the following terms:

"5.1 Correspondence between prisoners and the organisations/individuals below is subject to confidential handling arrangements:

Legal Advisers

Courts

Bar Council

Law Society

Official Solicitor

Criminal Cases Review Commission (CCRC)

Parliamentary Commissioner for Administration (PCA)

Office for the Supervision of Solicitors (OSS)

Healthcare Commission

Office of the Legal Services Ombudsman

Prisons and Probation Ombudsman (PPO)

Her Majesty's Inspectorate of Prisons (HMIP)

Commission for Racial Equality (CRE) – [to be replaced by the Commission for Equality and Human Rights (CEHR) in October 2007]

Members of Parliament (MP) or Members of the National Assembly for Wales (AM) or Members of European Parliament (MEP)

Embassy or Consular Officials

Samaritans

5.2 Prison Rule 39 (1) and Young Offender Institution Rule 17 (1) provide for correspondence between prisoners and their legal advisers (defined as solicitor, counsel, or a clerk acting on behalf of either) or the Courts to be treated as privileged. This means that such correspondence must not be opened, read or stopped, except in special circumstances. In such circumstances, mail may only be opened for examination on the instruction of an Operational Manager and in the presence of the prisoner concerned (unless he or she declines the opportunity). A comprehensive guide on the handling arrangements for Rule 39/Confidential Access correspondence is at Annex A.

5.3 Correspondence between prisoners and their legal advisers and/or courts must be handled in accordance with the guidance contained in Annex A. The envelopes of legal correspondence should be clearly marked 'Prison Rule 39' or in the case of YOIs and Juveniles 'YOI Rule 17' or 'legal correspondence'.

5.4 'Confidential Access' correspondence, which is outside this Rule, is entitled to the same privileged handling arrangements as legal mail, but applies to correspondence with certain statutory bodies and individuals (a full list is in paragraph 5.1 above). The same handling arrangements apply to Confidential Access correspondence, except that the envelope should be marked 'Confidential Access' (as opposed to Rule 39) and should be clearly addressed to one of the qualifying bodies. Similarly all incoming mail from these bodies and individuals should bear the appropriate identifying mark that is commonly associated with that particular organisation. In some circumstances it may be appropriate for outgoing letters addressed to these organisations to be recorded in a Communications Log.

5.5 If by oversight an outgoing letter does not bear the correct marking but is clearly addressed to an individual or organisation covered by paragraphs 5.2 & 5.3, it must continue to be treated as privileged and handled accordingly. Alternatively, if incoming correspondence does not carry the proper marking which identifies it as originating from one of the bodies listed in paragraph 5.6, then the letter should be stopped by staff but opened in the prisoner's presence, with the stipulation that if there is clear evidence of, or an attempt to abuse this privilege, alternative arrangements will be made for the prisoner's correspondence with these bodies.

5.6 It should be noted that only correspondence between a legal adviser and the courts is designated Rule 39, correspondence to other legal bodies generally falls under confidential access, but there may be instances where the content means that documents to other bodies would be counted as Rule 39 (e.g. copies of documents between a prisoner and his/her solicitor which are referred to the OSS, Bar Council or Law Society)."

15. For completeness I should add that paragraph 5.7, which appears under the heading 'Members of Parliament (MP), Members of the European Parliament (MEP) or Members of the National Assembly for Wales (AM)' reads as follows:

"Correspondence between prisoners and their MP, AM and MEP must be treated as privileged but only where they are acting in a constituency capacity (not in a social capacity). This privilege does not extend to Members of the House of Lords, who have no constituency responsibilities or to Local Councillors. All outgoing correspondence must be appropriately addressed i.e. to the particular Member at (i) the House of Commons, (ii) the National Assembly for Wales and (iii) the European Parliament and should also bear the prisoner's home or current (prison) address. All incoming correspondence should be written on and enclosed in officially recognised stationery and displaying an official identifying mark of the appropriate authority. However, if an MP, AM or MEP is writing to a prisoner in a purely social capacity, i.e. that individual is a personal friend or colleague, then the letter is not covered by this privilege."

16. So far as the provisions relating directly to 'Legal and Confidential Correspondence' are concerned, Annex A which is referred to in paragraph 5.2 quoted in paragraph 12 above, is attached as an Appendix to this judgment. Its purpose "is to provide detailed guidance on the handling arrangements for legal and confidential access correspondence between prisoners and their legal advisers, and with the courts."

The position in Wakefield Prison after 5 June 2008

17. Some 5 months before the Claimant's transfer to HMP Wakefield in November 2008 the Governor issued an 'Offender Information Notice' bearing the number 071/2008. An Offender Information Notice is one means used within a prison to make known to prisoners and/or staff the implications of a new policy being adopted within the prison or to reinforce points of an existing policy.
18. This particular Offender Information Notice was in the following terms:

"Recent intelligence suggests that abuse of the Rule 39 Correspondence procedures is allowing prisoners to receive illicit items, namely drugs and pornography. In an attempt to stem this supply route ... the following procedure will apply with immediate effect:

All mail marked Rule 39 and all recorded or special delivery mail to prisoners will be separated from the ordinary mail by correspondence staff.

All mail marked Rule 39 and all recorded or special delivery mail to prisoners, once separated, will be taken to reception and x-ray searched.

Any Rule 39 mail that is not marked correctly i.e. not marked with Rule 39A or SO 5B 32(3) or no solicitors return address will be entered into the submit book for opening in the prisoner's presence.

Any Rule 39 mail that gives the correspondence staff cause for concern i.e. hand written, not franked, tatty envelope, etc, will be entered in the submit book for opening in the prisoner's presence.

All letters entered in the submit book must be approved by the Head/Deputy Head of Security & Operations for opening in the prisoner's presence. When either are not available the Duty Governor must approve the submit book entries.

Rule 39 mail that has been entered in the submit will be delivered to the wing to be opened in front of the prisoner by the wing Senior Officer. The wing Senior Officer will check the contents for illicit enclosures but will not read the mail.

When the mail has been found to contain no illicit enclosures it will be issued to the prisoner.

An entry must be made in the prisoner's history booklet whenever mail is opened in his presence under these conditions.

If an illicit item is found the mail and the illicit item must be placed into an evidence bag and delivered to Security.

The above procedure ensures that a prisoner's right to confidential access to his legal representative is not compromised."

19. It is the policy reflected in the fourth bullet point, or its application in relation to the Claimant's correspondence, that has given rise to the present proceedings. The essential complaint relates to the role that a handwritten envelope may play in giving "the correspondence staff cause for concern". Mr Thyne acknowledged at the outset of the hearing that it was the handwritten nature of the envelopes that lay behind the invocation of the foregoing procedure (or at least its more relaxed form of implementation as I shall describe it in paragraph 22 below) on each occasion that it was invoked in relation to a questioned item of correspondence to the Claimant.
20. I will return to the Claimant's complaints shortly, but it should be acknowledged clearly at the outset that, whatever might be said about what he did in 1977, there is no suggestion that at any stage during his lengthy incarceration has he abused the Rule 39 procedure or indeed that any of the communications that have been made the subject of intervention in accordance with the Offender Information Notice referred to in paragraphs 18 and 19 above contained any "illicit enclosure". It is, of course, plain that the policy introduced by and reflected in that Notice was introduced before he arrived at Wakefield and was introduced for reasons wholly unconnected with anything he had done or been associated with in the past. His complaints derive from the fact that his correspondence is liable to be "caught" by a policy that had nothing to do with anything that he had ever done.
21. It is, of course, important to note that, as expressed in the Offender Information Notice, the implementation of this policy (a) does involve a member of the prison staff opening the questioned letter in the presence of the prisoner (and Mr Thyne confirmed, on instructions, that this would be the general expectation), but (b) does not involve the member of staff ever reading its contents. If the purpose of the exercise is to ensure that no "illicit enclosure", such as drugs or pornography, is present, then there would be no need to read the contents.
22. In fact, as will appear below (see paragraphs 30-33 below), the procedure contemplated in relation to the questioned correspondence sent to the Claimant would have involved the Claimant physically opening the correspondence in the presence of a prison officer, not the other way around. Although Ms Krause sought to characterise this as a "breach" of the prison's own procedures (and thus not in accordance with Rule 39 and the other provisions to which I have referred), I do not think that can be a fair description of the position. It seems to me to be a relaxation of the strict entitlement of the prison authorities, probably designed to try to meet to some extent the Claimant's objections. I will return to this shortly.
23. Given that many letters from, for example, a court or even a firm of solicitors (or from a sole barrister practitioner such as Ms Krause) are sent in handwritten envelopes, the principal question that arises in this case is whether a policy that appears to place reliance on that to engender "cause for concern" and ignores the existence of a stamp or other outward manifestation that it comes from a proper source is a proper policy. For example, in this case there is no doubt that the Claimant has received genuine letters from the Royal Courts of Justice in London and from Wakefield County Court about matters proceeding in those courts where the envelope has been addressed to him in handwriting although the sender's origin appears to be confirmed by a franked postmark with the court's address on the face of the envelope.
24. The Deputy Governor at HMP Wakefield, Mr Andrew Sleight, has amplified the reasons for the adoption of the policy reflected in Offender Information Notice 071/2008 in his witness statement dated 26 October 2009 and has explained why it was not possible always to accept the existence of a stamp bearing the name of a firm of solicitors as clear evidence of the legitimacy of its contents. He said this:

"7. In relation to Offender Information Notice 071/2008, HMP Wakefield had become aware of the increased misuse of legally privileged mail. Intelligence information had shown that prisoners were using outside contacts with the ability to counterfeit or reproduce stationary that would, if not checked, pass as Rule 39 correspondence and therefore be unchecked and serve as pathway to the trafficking of illegal substances into an establishment. The financial gain available from this activity was enough of an incentive for some external contacts to go as far as stealing legal stamps, stationary and even franking machines in order to make the mail look as if it is rightly subject to legal privilege. In other cases, prisoners have been known to bribe administration staff from some legal firms in order to do this. I attach, as Exhibit AS2 a document showing in comparison the scanned envelopes purportedly from the same solicitors, one of which was authentic and one which was not, to illustrate what the correspondence staff at HMP Wakefield are up against and the lengths that criminals will go to in order to bypass our systems.

8. Increased intelligence received at HMP Wakefield surrounding the above led to a need for the existing policy to be reissued locally to prisoners, hence the issue of Offender Information Notice 071/2008. This notice is intended to clarify, but not amend, the national policy. It is, therefore, quite normal [for] an Offender Information Notice to be more in depth than the national policy (PSO4411) as a local instruction is localised and will state how they intend to implement national guidance.

9. Correspondence staff at HMP Wakefield face a difficult challenge when dealing with the volumes of mail they are expected to process each day. In general, all mail (including Rule 39 correspondence) is x-rayed on arrival into the prison. The Rule 39 correspondence is then separated from general mail and the batches are searched separately by the Passive Drug Dogs.

10. In relation to Rule 39 correspondence, if no contraband is discovered using the above, non-invasive, checks it is distributed to the prisoner in accordance with Rule 39 procedures. If, however, staff are concerned about the authenticity of the Rule 39 correspondence for any reason (including those set out in Offender Information Notice 071/2008), it is not stopped. Instead, it is entered into the 'submit book' and the offender is asked to open it in the presence of a member of staff. That member of staff does not read the correspondence, they merely check for unauthorised enclosures. I consider that these arrangements are consistent with the requirements of PSO 4411 and do not compromise the confidentiality of this correspondence.

11. In addition to the above, correspondence staff do attempt to contact the purported sender of the Rule 39 correspondence that has given cause for concern, for example by telephoning the solicitors to check whether they have sent mail when letters are entered into the submit book. In Mr Chester's case, where correspondence was identified as being from the Court, staff did contact the Court but were informed that no records were available to confirm whether the letter received at HMP Wakefield and postmarked from the Court had been sent by them."

25. Reference to exhibit AS2 referred to by Mr Sleight does indeed show two stamped markings on letters posted within a day of each other in April 2006 apparently from the same firm of solicitors (not, incidentally, a firm of solicitors instructed by the Claimant at any stage so far as I am aware) which look very similar, albeit the font size may be slightly different in each case. It would undoubtedly be very difficult to pick up the difference on a cursory examination. Ms Krause has submitted that there is nothing further in the evidence to back up the suggestion that one of these stamps was genuine and one was fake. That is indeed so, but in a judicial review application of this nature it is not really open to challenge such an assertion. Indeed I am obliged also to accept the evidence that there was "intelligence information" to support the assertion that "outside contacts with the ability to counterfeit or reproduce stationary" were being used by prisoners to make this supply route for drugs and pornography potentially effective.
26. In a general sense, of course, everyone is aware that drugs are smuggled into prisons and that this is a major cause of concern to the prison authorities: see, e.g., R. v Michael Carroll [2009] 2 Cr App R (S) 7. There are occasional cases reported where someone associated with a legal firm has been discovered to have facilitated the smuggling of drugs into a prison: R. v Dooley (Kate Gemma) [2008] 1 Cr App R (S) 109. To that extent it is not difficult to accept that the intelligence upon which the Governor was acting when she promulgated the Offender Information Notice was regarded as reliable.
27. The essential issue is whether the policy of treating all handwritten envelopes apparently from a legal representative or a court, as reflected in the fourth bullet point above, is, as Mr Thyne contends, a proportionate and measured response to dealing with a perceived problem (namely, the abuse of the Rule 39 procedure to smuggle illicit items into prison) without breaching the prisoner's right to confidentiality in relation to communications from legal advisers and courts.
28. I will return to deal with this when I have reviewed briefly the Claimant's specific complaints.

The specific complaints

29. In some respects the complaints made by the Claimant are continuing complaints and I am not sure that seeking to identify, as did the Defendant's Summary Grounds of Resistance, a particular letter as the basis for the challenge in these proceedings is a fruitful exercise. I do not think it would be fair to deal with the case on the basis that the challenge is founded solely on a letter dated 20 November 2008 and to suggest that these proceedings are out of time. Indeed Mr Thyne did not seek to argue the case on this basis and, of course, the challenge advanced on the Claimant's behalf has largely been directed to the policy underlying the fourth bullet point in the Offender Information Notice.
30. The Claimant has asserted that his rights have been breached on a number of occasions starting with events in November 2008. On 11 November 2008 Ms Krause wrote to the Governor of HMP Wakefield saying who she was, providing her contact details and requesting that correspondence between her and the Claimant (and indeed with any other inmates) should not be interfered with unlawfully. On 23 November the Claimant complained formally to the prison for withholding a letter from Ms Krause on 20 November. The response to the complaint was that the "letter was hand written without any official markings" and drawing attention to paragraph 5.5 of PSO 4411 (see paragraph 14 above). The response referred to the Claimant's declining to permit the letter to be opened in the presence of a member of the prison staff. He made a further complaint on 9 December stating that a letter from Ms Krause complied with rule 39 and PS0 4411 requirements since it contained an address label setting out her name, chambers address and telephone number, yet it was selected to be opened in the presence of a member of staff because it was "hand written". The response was that there were "some concerns about the authenticity of the sender" which was why the letter was required to be opened in front of staff to give the assurance that the letter was bona fide.
31. The Claimant expressed his dissatisfaction with that response and Mr Sleight responded as follows:

"Rule 39 procedures have been abused at HMP Wakefield. On several occasions offenders have received or attempted to receive mail that is an abuse of rule 39 provisions.

Although there is no suspicion in regard to any law firm or legal professional involved in this practice, any correspondence sent under rule 39, but which cannot be substantiated as such is brought to the attention of the intended recipient for opening in front of staff to ascertain its status.

I note that the letter in question was hand written, bore no franking marks and the sender did not fully comply with the practices outlined in PSO 4411 Annex A, paragraph 12.

For these reasons you were asked to open the letter in the presence of staff to ascertain that it was from a bona fide source. I note that you refused to comply with this procedure and, as such, it has been placed in your stored property. Staff will not read your mail, they only need to ensure it has come from your legal representative.

I do not concur with your perception that we are [deliberately] withholding your mail and I would emphasise that if you wish to comply with the above procedure I am confident that the matter can be resolved to the satisfaction of all parties."

32. There were further instances in the months thereafter of complaints about the way letters from the Claimant's legal advisers were treated.
33. The Claimant received various letters from Wakefield County Court which gave rise to complaints by him about their treatment by prison staff. He also made a complaint on 1 May about a letter he received from the Royal Courts of Justice (with an "If undelivered" message on the envelope with the address of the Royal Courts of Justice given) on which his name and address was handwritten and which did have the expression "Rule 39" written on the envelope. The response to the complaint was that the letter was submitted to be opened in front of the Claimant's Wing Officer, but he refused to do this on several occasions. He complained that the response was insufficient and the initial response was that the "letter is handwritten … and we are instructed to submit to your Wing S/O to be opened in front of him/her." It was suggested that because he had "refused to do this on numerous occasions the letter has gone to [his] stored property." The Claimant responded by complaining that there was no lawful authority to withhold the correspondence and asked under what prison/statutory rule had it been withheld and placed with his stored property. The Governor replied as follows:

"As you refused to comply with the request to open mail in the presence of staff we were left with few options, we decided to place the mail into stored property, this would allow you to apply for your mail if you decided to open the mail in our presence. If you are unhappy with this arrangement we can return to sender."

34. Although that represents a summary of the specific complaints he has made, it is, as I have said, the general policy to which I referred in paragraph 19 above that he seeks to challenge in this application.

The legal framework

35. Long before the European Convention for the Protection of Human Rights and Fundamental Freedoms was incorporated into English law it was clear that a prisoner was entitled to unimpeded access to the courts, a right that could only be removed by express enactment: see Chester v Bateson [1920] 1 KB 829 and R. & W. Paul Ltd. v The Wheat Commission [1937] AC 139, both cases being referred to by Lord Bridge in Raymond v Honey [1983] 1 AC 1 at p 14. The question in that case was whether section 47 of the Prison Act 1952, which enabled the making of rules for the "discipline and control" of prisoners, conferred the power to make rules that could fetter a prisoner's right of access to the courts, particularly his right to institute proceedings in person and to communicate with solicitors about such proceedings. The answer was 'no'.
36. The jurisprudence moved on and led to the formulation of Rule 39: see paragraph 12 above.
37. The circumstances in which Rule 39 operates falls to be considered from time to time: see, e.g., Watkins v Secretary of State for the Home Department [2006] 2 AC 395 (the report of the proceedings in the Court of Appeal being at [2004] EWCA Civ 966) and Francis v The Home Office (and others) [2006] EWHC 3021 (QB).
38. In a case such as this, where there is no essential issue as to the facts, the question is where the balance lies between the competing interests identified in paragraph 1.

The submissions and the analysis

39. Ms Krause submits that, in general terms, the history of the cases that have addressed this issue have done so on the basis that the interference with communications from legal advisers should be reduced to a minimum. I agree, although it has to be said that the factual scenarios in Daly (see paragraph 12 above) and Watkins (see paragraph 37 above) revealed very much stronger grounds for concern that the prisoner's fundamental rights had been breached than in a case such as this. She says also that the relevant part of Rule 39 (namely, sub-paragraph 2) is engaged only if there is "reasonable cause to believe" that the questioned correspondence contains an "illicit enclosure". So much is indeed provided for in sub-paragraph 2. She says that paragraph 5.2 of Rule 39 does not require the envelope to be typed. Indeed that is so. She submits that an item of correspondence may only be interfered with if there is reasonable cause to believe that that specific item of correspondence contains illicit material. She submits that a blanket directive to question any handwritten envelope that is claimed to be a Rule 39 letter demonstrates that that requirement is not being observed.
40. Against that background, Ms Krause submits that the various decisions made to stop an apparent Rule 39 letter going straight to the Claimant based upon the handwritten envelope were unlawful and that the policy underlying it is a disproportionate response to the perceived or actual problem.
41. Mr Thyne's short, but simple, response is to ask the question "What was the prison to do given that it became aware that the Rule 39 procedure was being abused?" He submits that what is set out in the Offender Information Notice represents a measured and proportionate response to what is potentially (and perhaps actually) a very serious problem and that what was actually proposed on the 18 occasions when an apparent "Rule 39" letter to the Claimant was stopped (out of a total of about 170 received by him between November 2008 and October 2009) was itself reasonable. By that I mean that he, rather than a prison officer, would be invited to open the questioned letter, albeit in the presence of a prison officer who would not read the letter.
42. I broadly accept Mr Thyne's submissions, though with one or two reservations. In the first place, plainly something had to be done to address the evidence of the abuse of the Rule 39 procedure. It is necessary to assume for this purpose that the intelligence received was reliable and that a handwritten envelope afforded at least the makings of a suspicion that the claimed Rule 39 status of the communication was not genuine. That, at least, would appear to be the case so far as letters purporting to be from legal advisers are concerned. There does not appear to have been any intelligence or other evidence that those who have sought to abuse the Rule 39 procedure for illicit reasons have done so by faking stamps from the Wakefield County Court, the Royal Courts of Justice or indeed any other court. To that extent, the question arises as to whether it is legitimate to treat a letter apparently coming from such a source (because it is apparently franked by that source) as giving "cause for concern" that it contains illicit material merely because the envelope is handwritten. Mr Thyne responds to that concern by saying that all that is needed is a simple forgery of a court's franking stamp which could easily be achieved. Whilst that might at first sight be a somewhat slender justification for treating the kind of letter I have mentioned as suspicious, since the intelligence received indicated that "outside contacts" who could "counterfeit or reproduce stationary" or who could steal "legal stamps, stationary or even franking machines" (see paragraph 7 of the Offender Information Notice) were thought to be involved, the justification is, perhaps, not so slender.
43. In that connection, I do not know whether there is any significance in the way that paragraphs 12-14 of Annex A are phrased, but there is no reference there to an effective presumption that a letter purporting to come from a court in the UK is genuine, whereas that appears to be the approach to letters emanating from the European Commission or the European Courts: see paragraph 12 of Annex A. The focus within that part of Annex A appears, however, to be on "firms" – in other words, firms of solicitors.
44. I have not received any evidence about practices in other prisons throughout the UK (where doubtless concerns about "illicit enclosures" in purported Rule 39 correspondence are entertained just as much as at HMP Wakefield) and I do not, therefore, know to what extent handwritten envelopes from courts are similarly treated as suspicious. I am, of course, considering this application, and this application only, and nothing I say is intended to have any application beyond it. What I am prepared to conclude is that the authorities at Wakefield were justified in formulating the policy reflected in the Offender Information Notice and of implementing it as described, certainly in relation to correspondence apparently emanating from legal advisers (because of the intelligence received) and, on balance, also from courts throughout the country (because of concerns at the ease with which counterfeit stamps could be obtained and used). It should, of course, be understood that the policy with which this case is concerned was formulated less than 2 years ago and the challenge to it commenced in May last year. I do not know whether the policy has been the subject of any review since then. I would merely observe that it should, in my view, be kept under constant review. The law is very clear that a prisoner's right to unimpeded access to the courts and to his or her legal advisers is a fundamental right that may be interfered with only in exceptional circumstances. Simply putting in place a policy such as that implemented in this case and not continuing to monitor whether it is necessary and/or whether it can be modified could lead to further applications to the court.
45. I would observe, however, finally that, in my view, if such a policy is justified in principle, the concerns of a prisoner may, in certain circumstances, be met properly by permitting the prisoner to open the questioned item of correspondence in the presence of an appropriate member or members of staff, rather than the opening being undertaken by the member of the prison staff. I do not suggest that the opening of the letter by a member of the prison staff in the presence of the prisoner is wrong – indeed that is what is contemplated by the rules to which I have referred and there is probably very good reason for following that course in the vast majority of cases. However, in a case such as this (where there is no underlying suspicion that the Claimant was engaged in any kind of smuggling activity), the more relaxed approach, as I have described it, seems to me an additional sensible and proportionate response. This, therefore, represents an additional basis for the conclusion at which I have arrived, namely, that the Claimant, strongly though he may feel about the matter, has no legitimate ground for complaining about the procedures adopted. It may be unfortunate for him that his communications have been "caught" by the policy set in place before his return to Wakefield, but there are many aspects of everyday life in which those who are entirely innocent of the activities that have led to the introduction of a particular policy find themselves subject to that policy.
46. I would merely add for completeness that, whilst Ms Krause did not expressly abandon an aspect of the case derived from a complaint the Claimant had made about correspondence he received from a member of the House of Lords being stopped, it was not a matter that was the subject of argument. It is clear from that part of PSO 4411 quoted in paragraph 15 above that the Rule 39 privilege does not extend to Local Councillors or Members of the House of Lords. The issue does not, therefore, arise in the context of this application.

Conclusion

47. For those reasons, the application is dismissed.
48. I am grateful to Ms Krause and Mr Thyne for their succinct and helpful submissions.
APPENDIX

FURTHER GUIDANCE ON THE HANDLING ARRANGEMENTS FOR PRISONERS' LEGAL AND CONFIDENTIAL ACCESS CORRESPONDENCE

Introduction

The purpose of this annex is to provide detailed guidance on the handling arrangements for legal and confidential access correspondence between prisoners and their legal advisers, and with the courts. This correspondence is covered by Prison Rule 39 and YOI Rule 17 and applies to all prisoners, including Category A, young offenders and remand prisoners. It should also be read in conjunction with the guidance given in the National Security Framework, under Function 4 – Interception of Communications, which covers the security procedures for dealing with legal/ confidential access correspondence.

49. All correspondence between prisoners, their legal advisers and/or the Courts (including the European Courts) must be treated as privileged by virtue of Prison Rule 39 and corresponding YOI Rule 17. Such correspondence cannot be opened, read or stopped except in the specific circumstances set out in the Rule. Even then it may only be opened for examination in the presence of the prisoner concerned (unless the prisoner waives the opportunity) and the prisoner must be informed if it (or any enclosure) is to be read or stopped.
50. Furthermore all correspondence between prisoners and the bodies listed in paragraph 5.1 of the PSO must be given the same degree of confidentiality.

Action for Governors

51. There must be strict compliance with the rules regarding privileged and confidential mail. Any breach, even if accidental, is likely to lead to legal challenge in both the domestic and international courts. Governors must therefore ensure that the guidance contained in this annex is brought to the attention of all staff that process prisoners' correspondence and take the necessary steps to ensure that the confidentiality of prisoners' correspondence under these provisions is maintained at all times. Governors should pay particular regard to ensuring that there are sufficient safeguards to avoid the possibility of such correspondence being opened inadvertently.

Outgoing Correspondence – Examination

52. Prisoners should be informed that correspondence addressed to their legal advisers, or to any court including the European Commission of Human Rights, the European Court of Human Rights and the European Court of Justice can be handed in sealed for despatch, provided that the words "Prison Rule 39" or "YOI Rule 17" and the prisoner's name are written on the back of the envelope. Non-legal letters addressed bodies to whom prisoners can write confidentially should be marked "Confidential Access".
53. There may be occasions where, due to oversight or lack of awareness, correspondence may not be clearly marked in this way or may be left unsealed. Nonetheless establishments should note that, where correspondence is identified as being addressed to a recognisable legal adviser or body to whom confidential access status applies, it should be treated in exactly the same way as if it were properly marked and sealed.
54. On receipt of a letter for despatch, the correspondence officer should check whether the name and address is that of a legal adviser or a court or a body listed in paragraph 5.1. A legal adviser will usually be identifiable from the name and address of a sole practitioner or firm of practitioners, but may also for example be employed by another advisory body such as the Prisoners' Advice Service, Liberty or Citizen's Advice Bureau or may even practice from their home address. However, in cases of doubt it may be necessary to contact the legal adviser concerned to obtain confirmation of their status or seek verification from the Law Society.
55. The Officer should also consider whether any examination for illicit enclosures is necessary. An "illicit enclosure" is defined in the Prison Rule 39 (6) as including any article possession of which has not been authorised in accordance with Prison Rules and any correspondence to and from a person other than the prisoner, their legal adviser or a court (including the various European courts). However, prisoners may include relevant enclosures to third parties e.g. the Legal Services Commission, which they wish their solicitor to transmit on their behalf.
56. In any case where there are reasonable grounds to suspect that the letter contains an illicit enclosure, arrangements should be made to open the letter in the presence of the prisoner concerned, unless that prisoner declines the opportunity to be present (in which case the prisoner should be asked to sign a waiver). If the envelope is then found to contain an illicit enclosure, this should be removed and referred to the Governor for further action in accordance with the Rules and PSO 1250 – Prisoner's Property (Chapter 3 - "confiscation of unauthorised items").
57. Where an illicit enclosure has been removed from a letter, the prisoner must be informed. He or she should then be provided with another envelope in which to place the correspondence, minus the removed illicit enclosure. The prisoner should be asked to address it to the legal adviser and seal it in the presence of a member of staff, ready for despatch. The correspondence officer must not read the letter, which should be despatched unless it is passed to the Governor under paragraphs 16 to 20 below.
58. Both the decision and the reasons for examining the correspondence must be recorded clearly on the prisoner's record.

Incoming Correspondence – Examination

59. Incoming correspondence should be in a double envelope enclosing a letter sealed in an unstamped envelope, the outside of which will be annotated with the prisoner's name and prison number (if known); the name, address and telephone number of the law firm and a reference number; the words "Prison Rule 39" or "YOI Rule 17"; and the signature of the legal adviser or his or her clerk (or appropriate official in the case of confidential access correspondence). Alternatively, this information may be given in a covering letter to the Governor rather than written on the envelope addressed to the prisoner. All mail received from the European Commission or the European Courts is readily identifiable, i.e. the envelope is clearly stamped, bearing the words "European Commission, Strasbourg" or "European Court of Human Rights, Strasbourg" or "European Court of Justice" in both English and French.
60. There will be occasions when, due to oversight or lack of awareness by the author, an incoming letter may not be clearly marked in this way. Nonetheless where incoming correspondence appears as if it has come from a legal adviser (for example by a solicitor's stamp on the envelope or by some other marking such as "legal correspondence – privileged") or from an organisation entitled to confidential access, it should be treated in exactly the same way as if it were properly marked. In those cases where mail is received from a legal adviser employed by organisations such as Prisoners' Advice Service, Liberty or Citizen's Advice Bureau the same procedure will apply.
61. Where there is reason to believe that the letter has not originated from a genuine source, the prison should check directly with the firm concerned. In the event of the letter being found to be from a source other than the one which would be covered by Rule 39, YOI Rule 17, or confidential access, the rules relating to inspection of prisoners' ordinary correspondence will apply.
62. In all cases, staff responsible for processing prisoners' correspondence should consider whether there is reasonable cause to believe that the letter contains an illicit enclosure and if so should follow the procedures set out in paragraphs 8 and 9 above relating to the examination of the contents. Where an illicit enclosure is found, it should be removed and the prisoner informed accordingly. The letter should then be passed to the prisoner unless it is passed to the Governor under paragraphs 16 – 20 below. However, staff must not read the letter.

Special Instructions for reading legal correspondence

63. The reading of a prisoner's correspondence to or from a legal adviser, or body to whom confidential access applies is permitted only in exceptional circumstances, where the Governor has reasonable cause to believe that the contents of the letter would endanger prison security or the safety of others or are otherwise of a criminal nature.

17. The decision to read correspondence, which purports to be privileged, must be taken by the Governor personally. If a member of staff considers that a letter should be read and has already opened the envelope in the prisoner's presence in order to examine its enclosures in accordance with paragraphs 9 and 10 above, it should be placed in another envelope and resealed in the prisoner's presence so that the prisoner can be sure that the letter is not read before the Governor takes his decision. The prisoner should be given the opportunity to address the new envelope themselves.

64. Any decision to read the contents of a letter claiming to be privileged must be taken in relation to a particular item of correspondence. It will not be appropriate to issue a blanket instruction in respect of all prisoners or any class of prisoners in any establishment. Neither will it be appropriate to instruct that all correspondence to or from a particular source should be opened and read. Each letter must be considered on its own merits.
65. Any letter which, when read, discloses evidence of a threat to prison security or the safety of others or matters of a criminal nature should be referred immediately to Prison Service Security Policy Group for further consideration. The prisoner must be informed that their correspondence is being read.
66. Both the decision to read the letter and the reasons for it must be clearly recorded in the prisoner's record.