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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
    1. Rustomjee v The Queen (1876) 2 QB D 69 (CA)
    2. Maclaine Wason and Co Ltd v Department of Trade and Industry [1990] 2 AC 418
    3. R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198, [1993] 4 All ER 539, [1993] 3 WLR 1125 (CA)
    4. R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER 385, [1997] 1 WLR 27529 HLR 129 (CA)
    5. M v Home Office and another [1994] 1 AC 377; [1993] 3 All ER 537
    6. Derbyshire CC v Times Newspapers Ltd [1993] 1 ALL ER 1011 (HL)
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198, [1993] 4 All ER 539, [1993] 3 WLR 1125 (CA)

STEYN LJ: ....Section 47(1) of the Prison Act 1952 empowers the Secretary of State to make rules for the regulation and management of prisons. Rule 33(3) of the Prison Rules 1964, SI 1964/388, provides as follows:

'Except as provided by these Rules, every letter or communication to or from a prisoner may 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.'

The principal question arising on this appeal is whether r 33(3) is ultra vires s 47(1) of the 1952 Act on the ground that it permits the reading and stopping of confidential letters between a prisoner and a solicitor on wider grounds than merely to ascertain whether they are in truth bona fide communications between a solicitor and client.....

Rule 37 reads as follows:

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

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

Rule 37A was added as a result of the decision of the European Court of Human Rights in Golder v UK (1975) 1 EHRR 524. Rule 37A reads as follows:

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

(3) Subject to any directions given in the particular case by the Secretary of State, a registered medical practitioner selected by or on behalf of such a prisoner as aforesaid shall be afforded reasonable facilities for examining him in connection with the proceedings, and may do so out of hearing but in the sight of an officer.

(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.'

.....Turning back to r 33(3) it is important to note that the power to stop a letter is conditional on the view formed by the governor or an officer deputed by him 'that its contents are objectionable or that it is of inordinate length'. The word 'objectionable' is not defined in the 1964 rules. The context may be relevant. Rule 47 defines offences against discipline. Rule 47 covers various forms of violence used by prisoners, abusive language, smuggling and the like.....

The thrust of the appellant's case is set out in his application in the following terms:

'The grounds of challenge to the Rules and the Order and Instruction in the present case, is that the respondent has purported to exercise powers which fundamentally alter the basis of the privileged relationship between a solicitor and client, and parliament has not granted those powers to the respondent which he purports to exercise. Nothing in the Prison Act 1952 confers on the respondent the power to alter the basis of the privileged relationship between solicitor and client, by insisting that a privileged relationship only exists AFTER the issue of the writ.'

The accompanying affidavit of the appellant was sworn on 2 July 1990. The appellant explained that he was engaged in a number of legal actions and that as a result it was necessary for him to have contact with various solicitors. He also had a number of actions planned. He said that he had to be very careful what he said to his solicitors in correspondence 'because all such letters are subject to censorship behind the closed doors of the censors office'. He said he did not know whether his letters were copied: he assumed that their contents could be transmitted to the Home Office. The appellant described these arrangements 'as a very great fetter on what I can say to my lawyers in writing before the issue of the writ'.......

The ultra vires question

It is important not to lose sight of the precise nature of the question to be answered. The question is simply one of vires: is r 33(3) within the scope of the rulemaking power which was conferred by s 47(1) of the 1952 Act? Nobody suggests that s 47(1) expressly authorises the making of a rule such as r 33(3). The question is whether s 47 by necessary implication authorises the making of a rule of the width and scope of r 33(3). The power is concisely and simply expressed in s 47(1) as the power 'to make rules for the regulation and management of prisons'. Given that the matter to be considered is whether these words by necessary implication authorised the making of r 33(3), it is necessary to examine in the first place the scope of r 33(3).....

It is now necessary to examine the impact of r 33(3) on the civil rights of prisoners. This seems to us an important inquiry since, in relation to rulemaking powers alleged to arise by necessary implication, it can fairly be said that the more fundamental the right interfered with, and the more drastic the interference, the more difficult becomes the implication. It is an axiom of our law that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication (see Raymond v Honey [1982] 1 All ER 756 at 759 per Lord Wilberforce). The present case is concerned with civil rights in respect of correspondence. An ordinary citizen has a prima facie right which protects the confidentiality of letters sent by or to him....

Now we turn to a principle of greater importance. It is a principle of our law that every citizen has a right of unimpeded access to a court. In Raymond v Honey [1982] 1 All ER 756 at 760 Lord Wilberforce described it as a 'basic right'. Even in our unwritten constitution it must rank as a constitutional right. In Raymond v Honey Lord Wilberforce said that there was nothing in the Prison Act 1952 that confers power to 'interfere' with this right or to 'hinder' its exercise. Lord Wilberforce said that rules which do not comply with this principle would be ultra vires. Lord ElwynJones and Lord Russell of Killowen agreed with Lord Wilberforce. It is true that Lord Wilberforce held that the rules, properly construed, were not ultra vires. But that does not effect the importance of his observations. Lord Bridge held that rules in question in that case were ultra vires. He agreed with Lord Wilberforce on the basic principle. But he went further than Lord Wilberforce and said that a citizen's right to unimpeded access can only be taken away by express enactment (see [1982] 1 All ER 756 at 762, [1983] 1 AC 1 at 14). Lord Lowry agreed with both Lord Wilberforce and Lord Bridge. It seems it us that Lord Wilberforce's observations rank as the ratio decidendi of the case, and we accept that such rights can as a matter of legal principle be taken away by necessary implication.

Equally clearly established is the important principle that a prisoner's unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts form an inseparable part of the right of access to the courts themselves. The principle was laid down by the European Court of Human Rights in Golder v UK (1975) 1 EHRR 524. And it was clearly enunciated as part of our domestic jurisprudence by the Divisional Court in R v Secretary of State for the Home Dept, ex p Anderson [1984] 1 All ER 920 at 928-929....

It follows that s 47(1) does not authorise the making of any rule which creates an impediment to the free flow of communications between a solicitor and a client about contemplated legal proceedings. This too is a rule of fundamental importance....

It is not without significance that counsel could not refer us to a single instance where subordinate legislation was employed, let alone successfully employed, to abolish a common law privilege where the enabling legislation failed to authorise the abolition expressly. Parliament has frequently abolished the common law privilege against self-incrimination by primary legislation (see s 236 of the Insolvency Act 1986, s 2 of the Criminal Justice Act 1987 and s 72(1) of the Supreme Court Act 1981)....

These considerations do not by themselves provide the answer to the question before us but they do serve to underline the difficulties in the way of the submission that s 47(1) authorises by necessary implication r 33(3) as we have interpreted it. It will be a rare case in which it could be held that such a fundamental right was by necessary implication abolished or limited by statute. It will, we suggest, be an even rarer case in which it could be held that a statute authorised by necessary implication the abolition or limitation of so fundamental a right by subordinate legislation.....

So far we have approached this case from the point of view of settled principles of our domestic law. Since judgment was given at first instance in the present case the European Court of Human Rights has given a judgment in Campbell v UK (1993) 15 EHRR 137 which has a bearing on the present case. In that case a prisoner, who was serving a sentence in Scotland, complained that under prison rules the prison authorities opened and read as a matter of routine correspondence passing between the prisoner and his solicitor. The court held that this interference with his fundamental rights violated art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969). The court qualified this holding as follows (at 161):

'The reading of a prisoner's mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as reasonable cause will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused.'

It may well be that read in context the judgment merely requires that the prison authorities should have reasonable grounds for suspecting that the letters are not in fact bona fide legal correspondence before they are entitled to open the letters. This is, however, a matter of detail as to the interpretation of Campbell v UK. The important point is that the decision, although not directly binding in England, reinforces a conclusion that we have arrived at in the light of the principles of our domestic jurisprudence.....
By way of summary, we accept that s 47(1) by necessary implication authorises some screening of correspondence passing between a prisoner and a solicitor. The authorised intrusion must, however, be the minimum necessary to ensure that the correspondence is in truth bona fide legal correspondence.....