United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/242

Die Jovis 4° Martii 1982

Upon Report from the Appellate Committee to whom
was referred the Cause Raymond against Honey,
et e contra. That the Committee had heard Counsel
as well on Wednesday the 27th as on Thursday the
28th days of January last upon the Petition and Appeal
of Colin Peter Honey of 89 Eccleston Square London
SW1 praying that the matter of the Order set forth in
the Schedule thereto, namely an Order of a Divisional
Court of the Queen's Bench Division of Her Majesty's
High Court of Justice of the 7th day of April 1981
might be reviewed before Her Majesty the Queen in
Her Court of Parliament and that the said Order might
be reversed, varied or altered or that the Petitioner
might have such other relief in the premises as to
Her Majesty the Queen in Her Court of Parliament
might seem meet; as also upon the Petition and Cross-
Appeal of Steven Patrick Raymond currently detained
at Her Majesty's Prison, Maidstone praying that the
matter of the Order set forth in the Schedule thereto,
namely an Order of a Divisional Court of the Queen's
Bench Division of Her Majesty's High Court of Justice
of the 7th day of April 1981 might be reviewed before
Her Majesty the Queen in Her Court of Parliament
and that the said Order might be reversed, varied or
altered or that the Petitioner might have such other
relief in the premises as to Her Majesty the Queen in
Her Court of Parliament might seem meet; as also
upon the Case of Steven Patrick Raymond and also
upon the Case of Colin Peter Honey lodged in answer
to the said Original and Cross-Appeals; and due
consideration had this day of what was offered on
either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual
and Temporal in the Court of Parliament of Her
Majesty the Queen assembled, That the said Order of
the Divisional Court of the Queen's Bench Division
of Her Majesty's High Court of Justice of the 7th day
of April 1981 complained of in the said Original and
Cross-Appeals be, and the same is hereby, Affirmed
and that the said Petitions and Appeals be. and the
same are hereby, dismissed this House: And it is
further Ordered, That there be no Order as to Costs
in this House save that the Costs of the Original
Respondent be taxed in accordance with the provisions
of Schedule 2 to the Legal Aid Act 1974 the amount
thereof to be certified by the Clerk of the Parliaments.






HOUSE OF LORDS

RAYMOND
(ORIGINAL RESPONDENT AND CROSS-APPELLANT)

v.

HONEY
(ORIGINAL APPELLANT AND CROSS-RESPONDENT)

(ON APPEAL FROM A DIVISIONAL COURT
OF THE QUEEN'S BENCH DIVISION)

Lord Wilberforce
Lord Elwyn-Jones
Lord Russell of Killowen
Lord Lowry
Lord Bridge of Harwich




Lord Wilberforce

my lords,

This appeal and cross-appeal are brought from the Divisional Court of
the Queen's Bench Division which in its judgment dated 7th April 1981 (i)
held the appellant to be in contempt of court by reason of a decision to
stop the respondent from lodging an application to the High Court to
commit the appellant for contempt, but (ii) held the appellant not to have
been in contempt in respect of stopping a letter written by the respondent
to his solicitor on 26th June 1980.

The appellant was at the material time Governor of Albany Prison in
the Isle of Wight where the respondent was serving a sentence for theft
of some £2 million imposed on 10th October 1978. At the time of his
admission to Albany Prison, on 22nd March 1980, the respondent was
awaiting sentence in respect of convictions at St. Albans Crown Court upon
four counts of conspiracy to pervert the course of justice.

The respondent was also, at the material time, i.e. the first half of 1980,
facing committal proceedings at Camberwell Green Magistrates' Court in
respect of which he had retained solicitors.

On 26th June 1980 the respondent wrote a letter to his solicitors. The
appellant suspecting, and, as the Divisional Court held, having reasonable
cause to suppose, that the letter contained matter not relating to the
pending proceedings, caused it to be opened and read. Finding that it
included an allegation to the effect that an Assistant Governor at Albany
Prison—a Mr. Bagshaw—had caused to be lost or to disappear, a book
belonging to the respondent, the appellant stopped the letter. I shall
examine the evidence as to this matter more closely at a later stage. This
action, held not to amount to a contempt, forms the subject-matter of the
cross-appeal by the respondent.

Thereafter, the respondent prepared an application to the High Court
for leave to apply for an order of committal against the appellant under
R.S.C. Order 52 for contempt of court. This included a statement, a
draft affidavit and exhibits, and a covering letter. The appellant stopped
this application on the ground that it included an allegation against a
prison officer, and that, under the Prison Rules, it could not be forwarded
under what is known as the prior ventilation rule—viz. that such allegations
must first be investigated in the prison. This action, held to amount to
a contempt, forms the subject-matter of the appeal by the appellant.

I deal first with the appeal.

In considering whether any contempt has been committed by the appellant,
there are two basic principles from which to start.

First, any act done which is calculated to obstruct or interfere with the
due course of justice, or the lawful process of the courts, is a contempt of
court. These are the well known words of Lord Russell of Killowen C.J.
in Reg. v. Gray [1900] 2 QB 36, 40.




2

Since 1900, the force of this principle has in no way been diminished.
In A.-G. v. Times Newspapers Ltd. [1974] A.C. 273, Lord Diplock, with
whom Lord Simon of Glaisdale agreed, clearly stated that to inhibit suitors
from availing themselves of their constitutional right to have their legal
rights and obligations ascertained and enforced by courts of law, could
amount to contempt of court (1.c. p.310): whether the particular action
there involved had that effect is immaterial to the present case. The
principle has been strongly affirmed by the European Court of Human
Rights in the case of Golder (1980) 1 E.H.R.R. 524. The court there
decided that access to a court was a right protected by Article 6 of the
European Convention, and, while not expressly ruling upon the compati-
bility with the Convention of Rules 33, 34 and 37 of the Prison Rules 1964
(as to which see below), and while accepting that the right might be
subject to limitations, applied this ruling to a convicted United Kingdom
prisoner, who (inter alia) wished to direct proceedings against a member
of the prison staff, and to a hindrance of a temporary character.

Secondly, under English law, a convicted prisoner, in spite of his
imprisonment, retains all civil rights which are not taken away expressly
or by necessary implication—see Reg. v. Board of Visitors of Hull Prison
[19791 1 Q.B. 425, 455 and Solosky v. The Queen (1979) 105 D.L.R. (3d)
745, 760, Canadian Supreme Court per Dickson J.

_t

These two principles are not disputed by the appellant. The question
is to what extent (if any) the respondent's rights were taken away, or
affected by, the Prison Rules 1964 or by Standing Orders made by the
Secretary of State.

The statutory authority to make Rules is conferred by the Prison Act
1952 (as amended), s.47. This reads as follows:

" Rules for the management of prisons, remand centres, detention
"centres and Borstal institutions.

" (1) The Secretary of State may make rules for the regulation and
" management of prisons, remand centres, detention centres and Borstal
" institutions respectively, and for the classification, treatment, employ-
" ment, discipline and control of persons required to be detained
" therein.

" (2) Rules made under this section shall make provision for
" ensuring that a person who is charged with any offence under the
" rules shall be given a proper opportunity of presenting his case.

" (3) [Not material.]
" (4) [Not material.] "

The relevant Rules for the purposes of the present appeal and cross-appeal
are Rules 33, 34, 37 and 37A.

" Rule 33: Letters and visits generally.

" (1) The Secretary of State may, with a view to securing discipline
" and good order or the prevention of crime or in the interests of any
" persons, impose restrictions, either generally or in a particular case,
" upon the communications to be permitted between a prisoner and
" other persons.

" (2) Except as provided by statute or these Rules, a prisoner shall
" not be permitted to communicate with any outside person, or that
" person with him, without the leave of the Secretary of State.

" (3) Except as provided by these Rules, every letter or communica-
" tion to or from a prisoner may [substituted for ' shall' in 1974] be
" read or examined by the governor or an officer deputed by him, and
" the governor may, at his discretion, stop any letter or communication
" on the ground that its contents are objectionable or that it is of
" inordinate length.

" (4) [Deals with visits.]
" (5) [Deals with visits.]
" (6) [Deals with visits.]




3

" Rule 34. Personal letters and visits.

" (1) - (7) Deal with personal letters and visits.

" (8) A prisoner shall not be entitled under this Rule to communicate
" with any person in connection with any legal or other business, or
" with any person other than a relative or friend, except with the
" leave of the Secretary of State.

" (9) [Not material.]

" Rule 37: Legal Advisers.

" (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, with the leave of the Secretary
" of State, interview the prisoner in connection with any other legal
" business in the sight and hearing of an officer.

" Rule 37A: Further facilities in connection with legal proceedings.

" (1) A prisoner who is a party to any legal proceedings may
" correspond with his legal adviser in connection with the proceedings
" and unless the Governor has reason to suppose that any such
" correspondence contains matter not relating to the proceedings it
" shall not be read or stopped under Rule 33(3) of these Rules.

" (2) [Not material.]
" (3) [Not material.]

" (4) Subject to any directions of the Secretary of State, a prisoner
" may correspond with a solicitor for the purpose of obtaining legal
" advice concerning any cause of action in relation to which the
" prisoner may become a party to civil proceedings or for the purpose
" of instructing the solicitor to issue such proceedings."

This sub-rule was inserted after the decision of the European Court of
Human Rights in Golder's case (see above).

The Rules, in addition, confer powers upon the Secretary of State to
make Standing Orders. These powers have been exercised as regards
prisoners' correspondence, and in particular with regard to complaints
against officers.

Standing Order 26(4)(b)(ix):

" The following matter may not be included in an outgoing letter:
"... (ix) Allegations against officers."

Standing Order 29(1):

" When a prisoner makes an allegation against an officer in a letter,
" the letter will be stopped and his Governor informed. The Governor
" will then explain to the prisoner the correct procedure to follow in
" making a complaint against an officer."

The correct procedure is in fact for the prisoner to make a formal
complaint with a view to an internal investigation. A prisoner may pursue
his complaint through the courts only after there has been an investigation
of this kind.

With regard to the institution and carrying on of legal proceedings by
prisoners, Standing Order 17A(4) provides:

" Subject to Orders 5 to 11 below an inmate will be permitted to
" institute civil proceedings (including an application for an order of
" Certiorari, Mandamus or Prohibition), or may instruct a solicitor
" to do so on his behalf, provided that he has first sought the advice
" of a solicitor about the institution of such proceedings. If the inmate
" wishes to institute proceedings in person, either without seeking
" advice or after receiving it, Orders 10 and 11 below will apply."

Standing Orders 5-11 again require " prior ventilation " of complaints
against the Home Office or the prison staff.




4

In the light of these provisions, I proceed to consider the subject matter
of the appeal—viz. the stopping by the appellant of the respondent's
application to the High Court. It was argued by the appellant that this
application was not a " communication " within the meaning of Rule 33(3):
that rule confers a discretion upon the Governor to stop any " communica-
" tion " on the ground that its contents are objectionable or that it is of
inordinate length. The Divisional Court accepted this argument.

For my part I prefer to deal with this point on, broader grounds. In
my opinion, there is nothing in the Prison Act 1952 that confers power
to make regulations which would deny, or interfere with, the right of the
respondent, as a prisoner, to have unimpeded access to a court. Section 47,
which has already been quoted, is a section concerned with the regulation
and management of prisons and, in my opinion, is quite insufficient to
authorise hindrance or interference with so basic a right. The regulations
themselves must be interpreted accordingly, otherwise they would be ultra
vires. So interpreted, I am unable to conclude that either rule 34(8)—
which is expressed in very general terms—or rule 37A(4), whether taken
by themselves or in conjunction with Standing Orders, is in any way
sufficiently clear to justify the hindrance which took place. The standing
orders, if they have any legislative force at all, cannot confer any greater
powers than the regulations, which, as stated, must themselves be construed
in accordance with the statutory power to make them.

The action of the appellant was clearly such as to deny, albeit temporarily,
the respondent's right of access to the court and, on the principle above
stated, constituted a contempt.

I agree, therefore, as to the appeal, with the conclusion of the Divisional
Court and with the manner in which it dealt with this contempt.

I now turn to the cross-appeal, continuing to refer to Mr. Raymond as
the respondent and to Mr. Honey as the appellant. The relevant facts
require fuller statement. The letter in question, dated 26th June 1980,
written by the respondent to his solicitors was caused to be opened and
read, on the ground that the appellant had grounds to suppose that it
contained matter not relating to the proceedings with which the letter was
mainly concerned, viz. those at Camberwell Green Magistrates' Court.
The Divisional Court held, and in my opinion were entitled to hold, that
the appellants did have reasonable cause so to suppose. What is in question
is the stopping of the letter. Whether the appellant was entitled to stop it,
under the Rules or Standing Orders, may be open to doubt: the Divisional
Court was inclined to the view that he was so entitled. I do not, however,
think it necessary to decide this question, because in any event I do not
consider that the respondent made good his contention that any contempt
was committed. The evidence on this point is admittedly not wholly clear.
The appellant's affidavit contains this passage: " I told the applicant "
(i.e. the respondent) " that he could rewrite the letter omitting the allegation
" of theft against Mr. Bagshaw and in any event he was to my knowledge
" due to be visited by his solicitor within the next few days and he could
" in the course of such interview have explained whatever may have been
" relevant in connection with his defence". Whether the respondent's
solicitor did visit him in the course of the next few days is not stated.

The respondent himself filed a lengthy affidavit complaining about the
opening of his letter and of what the appellant said to him in justification
of this action. However, he does not provide evidence as to what followed,
or deal directly with the appellant's affidavit, or assert in clear terms that
he was not able to communicate with his solicitor about his defence to
the Camberwell proceedings.

The Divisional Court accepted the appellant's evidence according to its
terms and concluded:

" In these circumstances, whether or not the respondent was entitled
" to stop the letter, we are satisfied that his conduct was not conduct
" calculated to obstruct or interfere with the due course of justice or
" the lawful process of the courts and that it was not therefore a
" contempt of court."

5

Although I could have wished for more precise evidence on this issue,
it was for the respondent to make out his case and for the Divisional Court
to reach a conclusion on such evidence as it had. I am not prepared to
say that their conclusion was unjustified.

In the event I would also dismiss the cross-appeal.

Lord Elwyn-Jones

my lords,

I have had the opportunity of reading in advance the speech of my noble
and learned friend, Lord Wilberforce. I agree with it and, for the reasons
which he gives, I too would dismiss the appeal and the cross-appeal.







Lord Russell of Killowen

my lords,

I have had the opportunity of reading in advance the speech delivered
by my noble and learned friend on the Woolsack. I find myself in complete
agreement with his opinion that both the appeal and the cross-appeal fail
and with his reasons for that opinion.

Lord Lowry

my lords,

I have had the advantage of reading in draft the speeches of my noble
and learned friends Lord Wilberforce and Lord Bridge of Harwich. I
respectfully agree with them and, for the reasons given by my noble and
learned friends, I, too. would dismiss the appeal and the cross-appeal.

Lord Bridge of Harwich

my lords,

I shall refer to the parties to this appeal and cross-appeal, for convenience,
as the Governor and the Prisoner.

I gratefully adopt the summary of the facts set out in the speech of
my noble and learned friend Lord Wilberforce and his statement of the
two basic principles to be applied; first, that any act done which is
calculated to obstruct or interfere with the due course of justice, or the
lawful process of the courts, is a contempt of court; secondly, that a
convicted prisoner, in spite of his imprisonment, retains all civil rights
which are not taken away expressly or by necessary implication. To these
I would add a third principle, equally basic, that a citizen's right to
unimpeded access to the courts can only be taken away by express enact-
ment: Chester v. Bateson [1920] 1 K.B. 829; R. & W. Paul Limited v.
The Wheat Commission [1937] A.C. 139.

Section 47 of the Prison Act 1952 and the relevant rules made thereunder
are set out in the speech of my noble and learned friend Lord Wilberforce
and I need not repeat them. The crucial rule is Rule 33(2). This forbids
a prisoner " to communicate with any outside person " save as permitted
by statute or the Rules or by leave of the Secretary of State. Read in the
context of Rule 34(8) and Rule 37, as a matter of construction of the
Rules independently of the statutory power under which they were made,
I find it impossible to exclude from the ambit of the prohibition communi-
cations between a prisoner and the courts. Indeed, I think the Rules,



6

.

in their original form, which did not include Rule 37(A), were intended
to give the Secretary of State an absolute discretion whether or not to
allow a prisoner to institute legal proceedings.

It will be observed that Rule 37(1), which gives the only unfettered right
of communication in connection with legal proceedings in the original
Rules, is available only to a prisoner who is already a party to the
proceedings. Rule 37(A)(4) was added by amendment after the decision
of the European Court of Human Rights in Golder v. U.K. 1 EHRR 524.
Presumably the " directions of the Secretary of State " to which the rights
given by this sub-rule are subject, contemplate regulation rather than
prohibition of the communications in question. But this sub-rule applies
only to communications with, and the institution of proceedings through,
a solicitor. Moreover Standing Orders set out an elaborate procedure
designed to discourage a prisoner from instituting proceedings in person
and impliedly assume that he requires the leave of the Secretary of State
to do so, which the Secretary of State has an absolute discretion to give
or withold.

The only statutory provision relied on as empowering the Secretary of
State to make rules imposing such fetters on a prisoner's access to the
courts as the Rules, as I read them, purport to impose, is the power in
section 47 of the Prison Act 1952 to make rules for the " discipline and
" control " of prisoners. This rule-making power is manifestly insufficient
for such a purpose and it follows that the Rules, to the extent that they
would fetter a prisoner's right of access to the courts, and in particular his
right to institute proceedings in person, are ultra vires. On this ground
the Governor's appeal against the decision of the Divisional Court that
he was in contempt of court in stopping the Prisoner's application to the
court must fail.

The Prisoner's cross-appeal relates to the earlier stopping of a letter to
his solicitor in connection with the pending application to Camberwell
Green Magistrates' Court to commit him for trial for offences alleged to
have been committed while in prison. It is conceded that the Governor
had reason to suppose that the letter contained matter not relating to the
pending proceedings which justified him in opening and reading the letter
under Rule 37(A(1). However, once the letter was opened, it was clear
that the whole letter, including the allegation against Mr. Bagshaw which
the Governor found objectionable, did " relate to the proceedings " in that
the Prisoner was saying, however misguidedly, that the allegation against
Mr. Bagshaw was to be put forward as part of his defence and he intended
that Mr. Bagshaw and a senior police officer should be called as witnesses
in this connection. It follows that the letter fell within the immunity
conferred by Rule 37(A)(1) and could not properly be stopped under Rule
33(3). No doubt the unjustified stopping of a communication between a
prisoner and his solicitor is capable of amounting to a contempt of court.
But it was for the Prisoner to show that it did so. As my noble and
learned friend Lord Wilberforce has pointed out, the evidence fails to
establish that the stopping of the letter to the solicitor effectively impeded
the Prisoner in giving to his solicitor whatever instructions he wished as to
the conduct of his defence in the Camberwell Green Magistrates' Court.

For these reasons I would dismiss both the appeal and the cross-appeal.

313838 Dd 8208150 C2 3/82