Lord Bingham of Cornhill Lord Steyn Lord Cooke of Thorndon Lord Hutton Lord Scott of Foscote
SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE DALY
ON 23 MAY 2001
 UKHL 26
LORD BINGHAM OF CORNHILL
1. On 31 May 1995 the Home Secretary introduced a new policy ("the policy") governing the searching of cells occupied by convicted and remand prisoners in closed prisons in England and Wales. The policy was expressed in the Security Manual as an instruction to prison governors in these terms:
2. Mr Daly is a long term prisoner. He challenges the lawfulness of the policy. He submits that section 47(1) of the Prison Act 1952, which empowers the Secretary of State to make rules for the regulation of prisons and for the discipline and control of prisoners, does not authorise the laying down and implementation of such a policy. But on this appeal to the House Mr Daly confines his challenge to a single aspect of the policy: the requirement that a prisoner may not be present when his legally privileged correspondence is examined by prison officers. He contends that a blanket policy of requiring the absence of prisoners when their legally privileged correspondence is examined infringes, to an unnecessary and impermissible extent, a basic right recognised both at common law and under the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that the general terms of section 47 authorise no such infringement, either expressly or impliedly.
The origin of the policy
3. On 9 September 1994 six category A prisoners, classified as presenting an exceptional risk, escaped from the Special Security Unit at HMP Whitemoor. An inquiry led by Sir John Woodcock, formerly HM Chief Inspector of Constabulary, was at once set up. The report of the inquiry, presented to Parliament in December 1994 (Cm 2741), revealed extensive mismanagement and malpractice at Whitemoor. The escape had been possible only because prisoners had been able, undetected, to gather a mass of illicit property and equipment. This in turn had been possible because prisoners' cells and other areas had not been thoroughly searched at frequent but irregular intervals, partly because officers seeking to make such searches had been intimidated and obstructed by prisoners, partly because relations between officers and prisoners had in some instances become unacceptably familiar so that staff had been manipulated or "conditioned" into being less vigilant than they should have been in security matters.
4. In its report the inquiry team made a number of recommendations. One of these was that cells and property should be searched at frequent but irregular intervals. Following a strip search, each prisoner was to be excluded from his cell during the search, to avoid intimidation. The inquiry team gave no consideration at any stage to legal professional privilege or confidentiality. The policy was introduced to give effect to the inquiry team's recommendation on searching of cells.
The legal background
5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.
6. These propositions rest on a solid base of recent authority. In R v Board of Visitors of Hull Prison, Ex p St Germain  QB 425, 455 Shaw LJ made plain that
Raymond v Honey  1 AC 1 arose from the action of a prison governor who blocked a prisoner's application to a court. The House of Lords affirmed, at p 10, that
Section 47 was held to be quite insufficient to authorise hindrance or interference with so basic a right as that of access to a court. To the extent that rules were made fettering a prisoner's right of access to the courts and in particular his right to institute proceedings in person they were ultra vires.
8. In R v Secretary of State for the Home Department, Ex p Anderson  QB 778 the prisoner's challenge was directed to a standing order which restricted visits by a legal adviser to a prisoner contemplating proceedings concerning his treatment in prison when he had not at the same time made any complaint to the prison authorities internally. Reiterating the principle that a prisoner remains invested with all civil rights which are not taken away expressly or by necessary implication, Robert Goff LJ, giving the judgment of the Queen's Bench Divisional Court, said, at p 790:
The standing order in question was held to be ultra vires. At pp 793-794 the court observed:
Campbell v United Kingdom (1992) 15 EHRR 137 concerned the compatibility with the European Convention of rule 74(4) of the Prison (Scotland) Rules 1952 (SI 1952/565)which provided that "every letter to or from a prisoner shall be read by the Governor . . . and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable." This rule had earlier been upheld as valid by the Court of Session: Leech v Secretary of State for Scotland, 1991 SLT 910. The European Court held that the interference with the applicant's correspondence violated article 8 of the Convention. At p 161, para 48 of its judgment, the court said:
10. That decision was applied in R v Secretary of State for the Home Department, Ex p Leech  QB 198. This case concerned rule 33(3) of the Prison Rules 1964 (SI 1964/388), which was in terms similar, although not identical, to rule 74(4) of the Scottish Rules. The decision is important for several reasons. First, it re-stated the principles that every citizen has a right of unimpeded access to the court, that a prisoner's unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with a possible institution of proceedings in the courts forms an inseparable part of the right of access to the courts themselves and that section 47(1) of the 1952 Act did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and a client about contemplated legal proceedings. Legal professional privilege was described as an important auxiliary principle serving to buttress the cardinal principles of unimpeded access to the court and to legal advice. Secondly, it was accepted that section 47(1) did not expressly authorise the making of a rule such as rule 33(3), and the court observed, at p 212, that a fundamental right such as the common law right to legal professional privilege would very rarely be held to be abolished by necessary implication. But the court accepted that section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offences against the criminal law and safeguarding national security. Rules could properly be made to permit the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it was in truth bona fide correspondence and to permit the stopping of letters which failed such scrutiny. The crucial question was whether rule 33(3) was drawn in terms wider than necessary to meet the legitimate objectives of such a rule. As it was put, at p 212:
The court concluded that there was nothing which established objectively that there was a need in the interests of the proper regulation of prisons for a rule of the width of rule 33(3). While section 47(1) of the 1952 Act by necessary implication authorised some screening of correspondence between a prisoner and a solicitor, such intrusion had to be the minimum necessary to ensure that the correspondence was in truth bona fide legal correspondence: since rule 33(3) created a substantial impediment to exercise by the prisoner of his right to communicate in confidence with his solicitor the rule was drawn in terms which were needlessly wide, and so was held to be ultra vires.
11. In the light of the decisions in Campbell and Leech, a new prison rule was made, now rule 39 of the Prison Rules 1999 (SI 1999/728). It provides, so far as material:
This rule, it is accepted, applies only to correspondence in transit from prisoner to solicitor or vice versa. The references to opening and stopping make plain that it has no application to legal correspondence or copy correspondence received or made by a prisoner and kept by him in his cell.
12. The Court of Appeal decision in Leech was endorsed and approved by the House of Lords in R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, which arose from a prohibition on visits to serving prisoners by journalists seeking to investigate whether the prisoners had, as they claimed, been wrongly convicted, save on terms which precluded the journalists from making professional use of the material obtained during such visits. The House considered whether the Home Secretary's evidence showed a pressing need for a measure which restricted prisoners' attempts to gain access to justice, and found none. The more substantial the interference with fundamental rights, the more the court would require by way of justification before it could be satisfied that the interference was reasonable in a public law sense. In this as in other cases there was applied the principle succinctly stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, Ex p Pierson  AC 539, 575:
13. The ambit of the present argument is very narrow. In the face of a compelling statement by Mr Narey, the Director General of HM Prison Service, Mr Daly accepts the need for random searches of prisoners' cells for the purpose of security, preventing crime and maintaining order and discipline. He accepts that such searches may properly be carried out in the absence of the resident prisoner. He accepts the need for prison officers to examine legal correspondence held by prisoners in their cells to make sure that it is bona fide legal correspondence and that such correspondence is not used as a convenient hiding place to secrete drugs or illicit materials of any kind, or to keep escape plans or any records of illegal activity. Thus he does not claim that privileged legal correspondence is immune from all examination. He contends only that such examination should ordinarily take place in the presence of the prisoner whose correspondence it is.
14. The Home Secretary for his part accepts that prison officers may not read a prisoner's privileged legal correspondence during a cell search carried out in the absence of the prisoner. But he relies on the statement of Mr Narey, who regards the right to examine such correspondence as necessary and regards the absence of the prisoner during the examination as a necessary feature of the policy. Mr Narey states:
Mr Narey goes on to state that alternative procedures have been considered within the prison service and rejected and states:
He goes on to say:
A record of illicit property found during cell searches year by year since 1993, appended to Mr Narey's statement, shows that the number of finds per year has very greatly increased since 1995, although the number of items which could be concealed in legal correspondence is relatively very small.
15. It is necessary, first, to ask whether the policy infringes in a significant way Mr Daly's common law right that the confidentiality of privileged legal correspondence be maintained. He submits that it does for two related reasons: first, because knowledge that such correspondence may be looked at by prison officers in the absence of the prisoner inhibits the prisoner's willingness to communicate with his legal adviser in terms of unreserved candour; and secondly, because there must be a risk, if the prisoner is not present, that the officers will stray beyond their limited role in examining legal correspondence, particularly if, for instance, they see some name or reference familiar to them, as would be the case if the prisoner were bringing or contemplating bringing proceedings against officers in the prison. For the Home Secretary it is argued that the policy involves no infringement of a prisoner's common law right since his privileged correspondence is not read in his absence but only examined.
16. I have no doubt that the policy infringes Mr Daly's common law right to legal professional privilege. This was the view of two very experienced judges in R v Governor of Whitemoor Prison, Ex p Main  QB 349, against which decision the present appeal is effectively brought. At p 366 Kennedy LJ said:
Judge LJ was of the same opinion. At p 373, he said:
In an imperfect world there will necessarily be occasions when prison officers will do more than merely examine prisoners' legal documents, and apprehension that they may do so is bound to inhibit a prisoner's willingness to communicate freely with his legal adviser.
17. The next question is whether there can be any ground for infringing in any way a prisoner's right to maintain the confidentiality of his privileged legal correspondence. Plainly there can. Some examination may well be necessary to establish that privileged legal correspondence is what it appears to be and is not a hiding place for illicit materials or information prejudicial to security or good order.
18. It is then necessary to ask whether, to the extent that it infringes a prisoner's common law right to privilege, the policy can be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime. Mr Daly's challenge at this point is directed to the blanket nature of the policy, applicable as it is to all prisoners of whatever category in all closed prisons in England and Wales, irrespective of a prisoner's past or present conduct and of any operational emergency or urgent intelligence. The Home Secretary's justification rests firmly on the points already mentioned: the risk of intimidation, the risk that staff may be conditioned by prisoners to relax security and the danger of disclosing searching methods.
19. In considering these justifications, based as they are on the extensive experience of the prison service, it must be recognised that the prison population includes a core of dangerous, disruptive and manipulative prisoners, hostile to authority and ready to exploit for their own advantage any concession granted to them. Any search policy must accommodate this inescapable fact. I cannot however accept that the reasons put forward justify the policy in its present blanket form. Any prisoner who attempts to intimidate or disrupt a search of his cell, or whose past conduct shows that he is likely to do so, may properly be excluded even while his privileged correspondence is examined so as to ensure the efficacy of the search, but no justification is shown for routinely excluding all prisoners, whether intimidatory or disruptive or not, while that part of the search is conducted. Save in the extraordinary conditions prevailing at Whitemoor before September 1994, it is hard to regard the conditioning of staff as a problem which could not be met by employing dedicated search teams. It is not suggested that prison officers when examining legal correspondence employ any sophisticated technique which would be revealed to the prisoner if he were present, although he might no doubt be encouraged to secrete illicit materials among his legal papers if the examination were obviously very cursory. The policy cannot in my opinion be justified in its present blanket form. The infringement of prisoners' rights to maintain the confidentiality of their privileged legal correspondence is greater than is shown to be necessary to serve the legitimate public objectives already identified. I accept Mr Daly's submission on this point.
20. I am fortified in reaching this view by four considerations, all of some importance in my opinion:
(1) Following a complaint to him about the policy by a prisoner other than Mr Daly in November 1995, the Prisons Ombudsman carried out a full inquiry and reported in November 1996. In his report the Ombudsman said:
(2) The Ombudsman's investigations revealed that, following a complaint by a prisoner confined in HMP Full Sutton, a procedure had been developed in that prison to meet the wishes of prisoners who objected to the searching of their legal documents in their absence. The procedure was that
It does not appear that this procedure gave rise to difficulty in practice.
(3) The current standing order covering cell searches in Scotland provides that
It is pointed out that the prison population in Scotland is small compared with that of England and Wales, there are very few high risk prisoners and escape is rare. No doubt the problem of control is less acute in Scotland than in England and Wales. But the Scottish experience does suggest that a policy which generally permits a prisoner to be present during the examination of his privileged legal correspondence, unless there are, or are reasonably believed to be, good reasons for excluding him, is not unworkable in practice.
(4) While cell searches in recent years have led to the finding of very many more items of illicit property than in earlier years, only two such items have been identified as having been found among legal documents and the great majority of items found could not have been concealed in that way. It does not appear that legal files or bundles have been regarded by prisoners as a highly favoured hiding place for materials they are not permitted to hold.
21. In Ex p Main  QB 349 and again in the present case, the Court of Appeal held that the policy represented the minimum intrusion into the rights of prisoners consistent with the need to maintain security, order and discipline in prisons. That is a conclusion which I respect but cannot share. In my opinion the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners. Section 47(1) of the 1952 Act does not authorise such excessive intrusion, and the Home Secretary accordingly had no power to lay down or implement the policy in its present form. I would accordingly declare paragraphs 17.69 to 17.74 of the Security Manual to be unlawful and void in so far as they provide that prisoners must always be absent when privileged legal correspondence held by them in their cells is examined by prison officers.
22. Although, in response to a request by the House during argument, counsel for Mr Daly proffered a draft rule which might be adopted to govern the searching of privileged legal correspondence, it would be inappropriate for the House to attempt to formulate or approve the terms of such a rule, which would call for careful consideration and consultation before it was finalised. It is enough to indicate that any rule should provide for a general right for prisoners to be present when privileged legal correspondence is examined, and in practice this will probably mean any legal documentation to avoid time-wasting debate about which documents are privileged and which are not. But the rule must provide for the exclusion of the prisoner while the examination takes place if there is or is reasonably believed to be good cause for excluding him to safeguard the efficacy of the search, and the rule must permit the prison authorities to respond to sudden operational emergencies or urgent intelligence.
23. I have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review. But the same result is achieved by reliance on the European Convention. Article 8.1 gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly's exercise of his right under article 8.1 to an extent much greater than necessity requires. In this instance, therefore, the common law and the convention yield the same result. But this need not always be so. In Smith and Grady v United Kingdom (1999) 29 EHRR 493, the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for the breach of their rights under article 8 of the convention because the threshold of review had been set too high. Now, following the incorporation of the convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy. On this aspect of the case, I agree with and adopt the observations of my noble and learned friend Lord Steyn which I have had the opportunity of reading in draft.
24. I am in complete agreement with the reasons given by Lord Bingham of Cornhill in his speech. For the reasons he gives I would also allow the appeal. Except on one narrow but important point I have nothing to add.
25. There was written and oral argument on the question whether certain observations of Lord Phillips of Worth Matravers MR in R (Mahmood) v Secretary of State for the Home Department  1 WLR 840 were correct. The context was an immigration case involving a decision of the Secretary of State made before the Human Rights Act 1998 came into effect. The Master of the Rolls nevertheless approached the case as if the Act had been in force when the Secretary of State reached his decision. He explained the new approach to be adopted. The Master of the Rolls concluded, at p 857, para 40:
These observations have been followed by the Court of Appeal in R v Secretary of State for the Home Department, Ex p Isiko (unreported), 20 December 2000 and by Thomas J in R v Secretary of State for the Home Department, Ex p Samaroo (unreported), 20 December 2000.
26. The explanation of the Master of the Rolls in the first sentence of the cited passage requires clarification. It is couched in language reminiscent of the traditional Wednesbury ground of review (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223), and in particular the adaptation of that test in terms of heightened scrutiny in cases involving fundamental rights as formulated in R v Ministry of Defence, Ex p Smith  QB 517, 554E-G per Sir Thomas Bingham MR. There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where convention rights are at stake.
27. The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see Professor Jeffrey Jowell QC, "Beyond the Rule of Law: Towards Constitutional Judicial Review"  PL 671; Craig, Administrative Law, 4th ed (1999), 561-563; Professor David Feldman, "Proportionality and the Human Rights Act 1998", essay in The Principle of Proportionality in the Laws of Europe (1999), pp 117, 127 et seq. The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. 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 considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138:
In other words, the intensity of the review, in similar cases, 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.
28. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell  PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood  1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, "that the intensity of review in a public law case will depend on the subject matter in hand". That is so even in cases involving Convention rights. In law context is everything.
LORD COOKE OF THORNDON
29. Having had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Steyn, I am in full agreement with them. I add some brief observations on two matters, less to supplement what they have said than to underline its importance.
30. First, while this case has arisen in a jurisdiction where the European Convention for the Protection of Human Rights and Fundamental Freedoms applies, and while the case is one in which the Convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.
31. To essay any list of these fundamental, perhaps ultimately universal, rights is far beyond anything required for the purpose of deciding the present case. It is enough to take the three identified by Lord Bingham: in his words, access to a court; access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. As he says authoritatively from the woolsack, such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. The point that I am emphasising is that the common law goes so deep.
32. The other matter concerns degrees of judicial review. Lord Steyn illuminates the distinctions between "traditional" (that is to say in terms of English case law, Wednesbury) standards of judicial review and higher standards under the European Convention or the common law of human rights. As he indicates, often the results are the same. But the view that the standards are substantially the same appears to have received its quietus in Smith and Grady v United Kingdom (1999) 29 EHRR 493 and Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548. And I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.
33. I, too, would therefore allow the present appeal.
34. I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Steyn. I am in full agreement with the speech of Lord Bingham of Cornhill and for the reasons which he gives I would also allow this appeal.
35. I am also in agreement with the general observations made by Lord Steyn on R (Mahmood) v Secretary of State for the Home Department  1 WLR 840.
LORD SCOTT OF FOSCOTE
36. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend, Lord Bingham of Cornhill. I am in complete agreement with the reasons he has given for allowing the appeal.
37. I am also in agreement with the remarks made by my noble and learned friend, Lord Steyn about R (Mahmood) v Secretary of State for the Home Department  1 WLR 840. I, too, would allow the appeal