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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R. v Secretary of State for the Home Department ex p. Leech No.2  EWCA Civ 12 (19 May 1993)
Cite as:  EWCA Civ 12,  QB 198,  3 WLR 1125
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
QUEEN'S BENCH DIVISION
B e f o r e :
LORD JUSTICE STEYN
LORD JUSTICE ROSE
|R E G I N A|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|EX PARTE MARK FRANCIS LEECH|
John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)
DX 39903, London) appeared on behalf of the Appellant.
MR R JAY (instructed by Treasury Solicitors, DX 2318, Victoria) appeared on behalf of the Respondent.
Crown Copyright ©
Wednesday, 19th May 1993
LORD JUSTICE STEYN:
The principal issue:
This is the judgment of the court. 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 provides as follows:
"(3) 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 Rule 33 (3) is ultra vires section 47 (1) of the 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.
The regulatory framework
Notwithstanding the narrowness of the principal issue, it is right at the outset to set out the regulatory provisions which touch on the matter. The status of the various facets of the regulatory framework must be identified. Section 47 (1) of the Prison Act 1952 is the only relevant primary legislation. Pursuant to section 47 rules are made by statutory instrument: section 52 (1) of the Act. And any statutory instrument containing rules under section 47 (1) is subject to annulment by a resolution of either House of Parliament: section 66 (4) of the Criminal Justice Act 1967. The Prison Rules 1964 were made by S.I. No. 388. The Prison Rules leave a large measure of discretion to prison authorities. The Standing Orders give guidance as to how discretionary powers are to be exercised. Circular Instructions are issued by the Prison Department to prison governors. They are used to amend Standing Orders and are frequently absorbed in Standing Orders. Unlike rules made under section 47 (1), Standing Orders and Circular Instructions are not made by statutory instrument and are not laid before Parliament.
Section 47 (1) of the Prison Act 1952 provides as follows:
"The Secretary of State may make rules for the regulation and management of prisons, remand centres, detention centres and [youth custody centres] respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein."
A group of rules contained in Rules 33 to 37A deal with prisoners' correspondence and visits. The critical provision is Rule 33 (3), which we have already set out, but it is necessary to read it in the context in which it appears. Rule 33 so far as material reads as follows:
"(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 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."
Regulation 34 deals with the number of personal visits which a prisoner may receive and the number of personal letters which a prisoner may send and receive. Regulations 35 and 36 are not relevant. 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."
Regulation 37A was added as a result of the decision of the European Court of Human Rights in Golder v. United Kingdom (1975) 1 E.H.H.R. 524. Rule 37A reads as follows:
"(1) a prisoner who is 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 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."
Both Rule 37(1) and Rule 37A(2) refer to a prisoner who is a party to legal proceedings. It is common ground that both rules refer to legal proceedings which are already duly constituted. But by paragraph 4 of Circular Instruction 23/87 that intention was spelt out in some detail.
Turning back to Rule 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 Prison 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. At the time of the promulgation of the Prison Rules 1964 it was also a disciplinary offence if a prisoner made "any false and malicious allegation against an officer" (paragraph 12) or repeatedly "made groundless complaints" (paragraph 16). Subsequently, these two disciplinary offences were abolished.
It is now necessary to turn to Standing Order 5 which came into effect on 1 April 1989. Paragraph 32 (3) reads as follows:
"Correspondence between an inmate and his or her legal adviser which relates only to legal proceedings to which the inmate is a party or to a forthcoming adjudication against the inmate carries special privileges under Prison Rule 37A(1) and Young Offender Institution Rule 14(1). The envelope carrying such correspondence should be marked "SO 5B 32(3)" and if outgoing may be handed in sealed by the inmate. Unless the Governor has reason to suppose that a letter purporting to be covered by this paragraph is not in fact covered, such a letter:
(a) may not be read;
(b) may not be stopped;
(c) may be opened for examination only in the presence of the inmate concerned (unless the inmate declines the opportunity)."
Paragraph 35 provides as follows:
"Correspondence with a legal adviser, other than:
(a) correspondence about legal proceedings to which the inmate is already a party or about a forthcoming adjudication, on which see paragraph 32 (3) above, and
(b) correspondence about an application to the European Commission of Human Rights or proceedings resulting from it, on which see Order 5F7
may be read and may not contain matter mentioned in paragraph 34 above."
It is unnecessary it to consider Order 5F7. It is, however, necessary to refer to the concluding words "matter mentioned in paragraph 34 above." The latter paragraph includes a reference to "material which contains.....(c) information which is known or believed to be false". Paragraph 38 contains the following provisions which have been canvassed in argument:
"(1) Subject to sub paragraph (3) below, no copy shall be taken of a letter which the Governor is precluded from reading under paragraph 32 (3) above.
(2) Subject to sub paragraph (3) below, no copy shall be taken of any other letter to or from an inmate except:
(i) to (v)......
(vi) where a letter contains material which seriously casts doubt upon an inmate's fitness for release on licence and, in particular, suggests that he or she would represent a risk if at large; and where the matter ought to be brought to the attention of
(a) the Local Review Committee, or
(b) Headquarters to consider whether it should be laid before the Parole Board or Ministers;
(vii) to (x)......"
Against this background of primary legislation, subordinate legislation and administrative directions, it is now necessary to provide a brief narrative. On 2 July 1990 Mark Francis Leech launched an application for leave to apply for judicial review. At that time Mr Leech was a prisoner detained at H.M. Prison Blundeston, Lowestoft, Suffolk, having been sentenced to a term of six years' imprisonment in September 1987 at Reading Crown Court. Form 86 A was completed on behalf of Mr Leech. He sought relief in respect of
"The stipulation contained in Rule 37A(1) Prison Rules 1964 and Standing Order 5B (35) and Circular Instruction 23/87 that a prisoner cannot have privileged uncensored correspondence with his legal adviser unless the inmate is a party to proceedings in which a writ has been issued on which he is named as a party.
The thrust of Mr Leech'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 acompanying affidavit of Mr Leech was sworn on 2 July 1990. Mr Leech 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. Mr Leech described these arrangements "as a very great fetter on what I can say to my lawyers in writing before the issue of the writ".
On 29 November 1990 Mr. Justice Garland granted Mr Leech leave to move for judicial review.
On behalf of the Secretary of State two affidavits were sworn and filed. The first was by Mr Caffery, a Grade 5 Officer in the Directorate of Inmate Administration Section of the Prison Service, which is it part of Home Office. The purpose of this affidavit was to describe the relevant regulatory provisions about prisoners' correspondence and to explain their rationale. We will return to this affidavit when we consider the substantive arguments. The second affidavit was by the Governor of H.M. Prison Blundeston. This affidavit briefly described the practice followed at that particular establishment in relation to correspondence between inmate an legal advisors.
The judgment of Webster J
On 22 October 1991 Mr Leech's application for judicial review came before Mr. Justice Webster for hearing. The judge dismissed the application. Before us both sides suggested that the judgment did not do full justice to the way their cases were presented. Mr Fitzgerald said that the judge did not deal with the argument advanced on behalf of Mr Leech that as a matter of construction Rule 33 (3) is ultra vires section 47 (1) of the Act. Mr Jay said that the judge wrongly attributed to him, on the ultra vires issue, an argument that the court should embark on a balancing exercise in relation to the need for Rule 33 (3). It seems to us not to be a useful exercise to attempt to disinter arguments at first instance. Instead we turn to the way in which the judge in fact decided the case.
Rightly the judge expressed his view as to the importance of the prisoners' rights. He said:
"The right to privilege is neither what has been properly described as a constitutional or fundamental right, like the right of access to the courts, nor a natural right, like the right of free association: it is a right established by case law. But as such it is not free standing. It is a right adherent to the a natural right of free association in a particular context, namely, that of communications with legal advisers."
The judge said that the Rules may in principle properly restrict or regulate the right of a prisoner to correspond with his solicitor. After expressing this view the judge turned to the question "whether there is a power under section 47 to make a rule creating this particular restriction." The judge then addressed the question whether under section 47 (1) of the Act there was a power to make a rule such as Rule 33 (3). The judge concluded that there was no power to make rules which are more extensive and more extensive than those which are reasonably necessary to carry out the statutory purpose. The judge regarded this as a question whether Rule 33 (3) should be struck down on grounds of unreasonableness or irrationality. Relying on the affidavit of Mr Caffery, the judge decided that a case of irrationality or unreasonableness was not made out. He dismissed the application. In deference to the views of the judge, who was most experienced in this class of work, we thought it right to set out the judge's reasoning. In our view, however, the matter should be approached rather differently.
The events subsequent of judgment
On 23 October 1991 the day after judgment Mr Leech was transferred from H.M. Prison Shepton Mallet in England, where he was detained, to H.M. Prison Barlinie in Scotland for the purposes of attendance at criminal proceedings which remained outstanding in Scotland. On 10 April 1992 he was convicted and a term of seven years was imposed on him. That sentence was subsequently back dated to 29 November 1991 which was the date when he was due to be released from the sentence imposed in 1987 at Reading Crown Court. On 14 May 1992 Mr Leech was transferred to H.M. Prison Glenochil in Scotland where he is still detained. It appears that Mr Leech has in the past applied to be transferred to H.M. Prison Leyhill in England. On 21 April 1993 he formally re applied to be so transferred.
In view of the fact that Mr Leech is presently detained in Scotland, Mr Fitzgerald, who appeared for Mr Leech, first addressed us on the preliminary question of Mr Leech's locus standi to pursue this appeal. Mr Fitzgerald submitted that by reason of the wider public law implications of the matter it is a proper case for this court to hear. For that proposition he was able to rely on the decision of the Court of Appeal in R v Board of Visitors of Dartmoor prison: Ex parte Smith  1 QB 106, at 115B F. Mr Jay, who appeared for the Secretary of State, accepted that this was a proper case for us to hear. In any event, Mr Fitzgerald pointed out that even as far as Mr Leech was concerned the case was not academic since Mr Leech may be transferred to England. We accepted Mr Fitzgerald's submissions, and ruled that the appeal should proceed.
The interpretation of Rule 33 (3)
Before us Mr Fitzgerald made a submission as to the interpretation of Rule 33 (3) which was not made before the judge. He submitted that Rule 33 (3) should not be interpreted as authorising the reading and stopping of correspondence between a prisoner and a solicitor. Mr Fitzgerald recognised the difficulties in the way of this submission. Rule 33 (2) provides that a prisoner shall not be permitted to communicate with "any outside person" without the leave of the Secretary of State. That prohibition is apt to cover communications between a prisoner and a solicitor. Rule 33 (3) covers "every letter to and from a prisoner". The language is general and unambiguous. The ordinary meaning of the language covers letters to and from a solicitor. Moreover, the restrictive interpretation advanced would have the strange result that correspondence about current legal proceedings is regulated by Rule 37A but that correspondence about contemplated legal proceedings is unregulated. That cannot be right. It follows that Rule 33 (3) permits the reading and stopping of prisoners' letters to solicitors, and letters from solicitors to prisoners. That brings us to the principal question in the case.
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 Rule 33 (3) within the scope of the rule making power which was conferred by section 47 (1) of the Act? Nobody suggests that section 47 (1) expressly authorises the making of a rule such as Rule 33 (3). The question is whether section 47 by necessary implication authorises the making of a rule of the width and scope of Rule 33 (3). The power is concisely and simply expressed in section 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 Rule 33 (3), it is necessary to examine in the first place the scope of Rule 33 (3).
The extent of the discretion under Rule 33 (3)
The question is in what circumstances the discretion under Rule 33 (3) may be exercised in respect of letters passing between a solicitor and client. It is plain that Rule 33 (3) draws a distinction between (a) the power of prison authorities to read and examine letters and (b) the power to stop letters. Rule 33 (3) creates an unrestricted power to read or examine "every letter". On the other hand, the power to stop a letter is qualified by the purpose for which it may be exercised. Rule 33 (3) provides that the discretion to stop a letter may be exercised "on the ground that its contents are objectionable or that it is of inordinate length". If the governor or an officer deputed by him forms the view on reasonable grounds that the contents are objectionable or that the letter is of inordinate length the discretion to stop the letter may be exercised. The meaning of the words "inordinate length" is clear. But an issue arose as to the meaning of the word "objectionable". The Mr Fitzgerald helpfully referred us to the legislative history of the Rule 33 (3). And it is clear that a provision for reading a prisoners' correspondence and stopping it, has existed since 1898:
Rule 76 of the Prison Rules 1899 (S.I. No 322); Rule 52 of the Prison Rules 1933 (S.I. No 809); Rule 75 of the Prison Rules 1949 (S.I. No 1073). The concept of objectionability was therefore first introduced at a time when the curtailment of prisoners' rights was far greater than it is today. In any event, the word objectionable is in its ordinary sense of wide import. Prima facie it means unacceptable. And it is important it bear in mind that Rule 33 (3) applies alike to a prisoner's ordinary correspondence and to a prisoner's correspondence with solicitors. Moreover, the word "objectionable" must be read in context. It is difficult to avoid the conclusion that anything which in the view of the prison authorities constitutes a disciplinary offence under Rule 47 could be regarded as objectionable. And when the 1964 rules were promulgated the making of false and malicious allegations against an officer, or the repeated making of groundless complaints, were disciplinary offences. When those two disciplinary offences were abolished such conduct did not necessarily cease to be objectionable within the meaning of Rule 33 (3).
Mr Jay submitted that both the power to read and examine letters and to stop letters are only intended to enable the prison authorities to take action, where there are no extant legal proceedings, in order "to satisfy themselves that it is, in fact, bona fide legal correspondence". This submission does not distinguish between the two powers. It cannot be squared with the generality of the language which creates an unrestricted right to read and examine letters. It cannot be squared with the language which creates a qualified but wide power to stop correspondence on the ground of objectionability or prolixity. In our view Mr Jay's submission on the interpretation of Rule 33 (3) is unsustainable.
The extent of civil rights of prisoners
It is now necessary to examine the impact of Rule 33 (3) on the civil rights of prisoners. This seems to us an important enquiry since, in relation to rule making 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: Raymond v. Honey  AC 1, at 10 G H, 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. That right is not dependent on the existence of a right of property. It derives from the law of confidentiality: Attorney General Newspapers Ltd v. Observer  1 AC 109, at 281B 282B, per Lord Goff. It is obvious, however, that a power to make rules to regulate prisons must include a power to make some rules about prisoners' correspondence. By necessary implication section 47 (1) confers a power of rule making which may limit a prisoner's general civil rights in respect of the confidentiality of correspondence.
In ascending order of importance, in the context of this case, the next relevant civil right is based on the general duty of solicitors to keep confidential all communications between themselves and their clients. This is a rule founded on principles of equity, and binds third parties who knowingly receive the communication in breach of confidence. On the other hand, such rights and duties are not peculiar to the relationship of solicitor and client. They extend to the relationship of all professional men and their clients: Parry Jones v. Law Society  Ch. 1, at 6G 7A. There is a presumption against statutory interference with vested common law rights. That must entail a presumption against a statute authorising interference with vested common law right by subordinate legislation. But we incline to the view that it is not unreasonable to interpret section 47 (1) as authorising by necessary implication some interference with this general right of confidentiality in accordance with the terms of Rule 33 (3).
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, supra, at 13A, 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 Elwyn Jones 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. 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. United Kingdom (1975) 1 EHRR 524. And it was clearly enunciated as part of our domestic jurisprudence by the Divisional Court in Regina v. Secretary of State for the House dependent, Ex parte Anderson  1 QB 778. Lord Justice Goff, in giving the judgment of the court, said (at 794 A B):
"As we can see from Raymond v. Honey itself, an inmate can initiate civil proceedings without making any formal complaint, simply by despatching the necessary documents to the court by post. Such a communication cannot be stopped by the governor, and it is not therefore, under the standing orders, subject to the simultaneous ventilation rule: see order 5B 33 (a). It must, we consider, be inherent in the logic of the decision of the House of Lords in Raymond v. Honey that an inmate's right of access to a solicitor for the purposes of obtaining advice and assistance with a view to instituting proceedings should be unimpeded, in the same way as his right to initiate proceedings by despatching the necessary documents for that purpose by post is unimpeded."
It follows that section 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 now necessary to consider the relevance of the fact that the communications between a solicitor and client are protected in a way in which other professional relationships are not protected. Cross on evidence, 7th edn., summarises the rules as follows (at 428):
"In civil and criminal cases, confidential communications passing between a client and his legal adviser need not be given in evidence by the client and, without the client's consent, may not be given in evidence by the legal adviser in a judicial proceeding if made either:
(1) to enable the client to obtain, or the adviser to give, legal advice; or
(2) with reference to litigation that is actually taking place or was in the contemplation of the client.
Communications passing between the legal adviser or client and third parties need not be given in evidence by the legal adviser if they come within (2) above."
Mr Jay has pointed out that these legal rights are subject to a number of exceptions. For example, the privilege is defeated if the legal advice was sought or given to assist in a fraud or illegality. Nevertheless, the prima facie legal professional privilege fulfils an important purpose: it encourages candour on the part of a client and this improves the prospect of the solicitor being able to give useful legal advice and effectively represent the client in legal proceedings. In D v. National Society for the Protection of Children (1978) AC 171 Lord Simon of Glaisdale explained the importance of this legal privilege (at 231H 232B):
"This process would be undermined if the trained advisers were excepted to divulge weaknesses in their cases arising from what they had been told by their clients. Indeed, the adversary system, involving professional assistance, could hardly begin to work effectively unless the client could be sure that his confidences would be respected. And a legal representative with only partial knowledge of his case would be like a champion going into battle unconscious of a gap in his armour. But it is only the rare case which has to be fought out in court. Many potential disputes, civil especially, are obviated or settled on advice in the light of the likely outcome if they had to be fought out in court. This is very much in the interest of society, since a lawsuit, though a preferable way of settling a dispute to actual or threaten violence, is wasteful of human and material resources. Thus similar considerations apply whenever a citizen seeks professional guidance from a legal adviser whether with a view to undertaking or avoiding litigation, whether in arranging his affairs in or out of court."
Legal professional privilege is therefore based on an important auxiliary principle which serves to buttress the cardinal principles of unimpeded access to the court and to legal advice.
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 section 236 of the Insolvency Act 1986; section 2 of the Criminal Justice Act 1987; section 72 (1) of the Supreme Court Act 1981. When the provision for mutual disclosure of experts' reports was introduced, it was feared, wrongly, we suggest, that such a provision might interfere with legal professional privilege. Accordingly, the necessary rule change was expressly authorised by section 2 (3) of the Civil Evidence Act 1972. Subsequently, when the rule providing for exchange of witnesses' statements was introduced, it was done by a simple rule change. It was then argued that the new rule was ultra vires as interfering with legal professional privilege. In Comfort Hotels Ltd v. Wembley Stadium  1 WLR 872 Mr. Justice Hoffmann dismissed this challenge on the ground that a mere procedural change was involved which did not interfere with the privilege. He described the privilege as "a strong one" (at 876H) and it is clear from his judgment that he would have held the new rule ultra vires if it had interfered with legal professional privilege. 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 section 47 (1) authorises by necessary implication Rule 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 of limitation of so fundamental a right by subordinate legislation.
The objective need for Rule 33 (3)
Given that at the heart of this case lies the question whether a necessary implication wide enough to validate Rule 33 (3) can be established it is important to consider whether an objective need for a rule such as Rule 33 (3) in the interests of the regulation of prisons can be demonstrated. And we are considering that question only in respect of letters passing between a prisoner and solicitor. What needs to be justified are the conferment of the separate powers of (a) reading and examining letters and (b) stopping letters. The question is whether there is a self evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability.
It will be convenient to deal first with the power to stop letters on the ground of prolixity. Mr Fitzgerald submitted that, while the provision of Rule 33 (3) on letters of inordinate length may be perfectly reasonable as a general rule, it is inappropriate to letters between a prisoner and a solicitor. For example, a solicitor's advice may be accompanied by a lengthy opinion from counsel or may enclose a proof of the prisoner's account of events for approval by the prisoner. We did not understand Mr Jay to argue that this part of Rule 33 (3) is appropriate to letters passing between solicitor and client. In any event, we would rule that it is impossible to conclude that there is by necessary implication an enabling power wide enough to save that part of Rule 33 (3). That does not mean that the whole of Rule 33 (3) is ultra vires. Applying a blue pencil test the words "or that it is of inordinate length" can be excised. But of far greater importance is the fact that objectionability and prolixity requirements are in no way linked. Conceptually, the first requirement is severable from the second: Director of Public Prosecutions v. Hutchinson  2 AC 783. If matters rested there, we would simply rule that the second requirement is ultra vires, leaving the remainder of Rule 33 (3) intact.
That brings us to the more important issues whether a demonstrable need for an unrestricted power to read and examine letters, and for a qualified power to stop letters on the ground of objectionability, have been established. It seems to us that such an objective need has not been established. Mr Fitzgerald referred us to section 134 of the Mental Health Act 1983 which authorises substantial interference by the managers of a hospital with letters passing between a patient and persons outside the hospital. But by virtue of the section 134 (3) (g) these inroads on the patient's ordinary rights do not apply to letters passing between the patient and "any legally qualified person instructed by the patient to act as his legal adviser". Making due allowance for the substantial differences between prisons and hospitals for the reception of mental patients, there seems to us force in Mr Fitzgerald's analogy.
There is, however, a more telling indication that there was no objective need for a rule as wide as Rule 33 (3). Rule 37 A(1) deals with current civil proceedings brought by or against a prisoner. In that context Rule 37 A(1) provides that correspondence between a prisoner and his legal adviser may only be read or stopped under Rule 33 (3) "if the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings". Rule 37A is unobjectionable as far as it goes. But what is the sense of the distinction between the prisoners rights of access to justice dependent on whether a writ has been issued or not? Judged in the context of a necessary implication into the rule making power under section 47 (1) we can see no material distinction. In Anderson Lord Justice Goff stated the principle of a prisoner's right of unimpeded access to a solicitor for advice and assistance in the context of "possible civil proceedings": 793 F. We respectfully agree. A distinction between current and possible legal proceedings seems extremely technical.
We will now consider the arguments contained in the affidavit of Mr Caffery. From the point of view of Prison Service he explains the rationale of Rule 33 (3). In his affidavit Mr Caffery states:
"By way of policy justification the examination and reading of correspondence to and from inmates is undertaken to prevent its use to plan escapes or disturbances, and to detect and prevent offences either against the criminal law or against prison discipline, or in the interests of national security."
In our judgment section 47 (1) must be interpreted as conferring by necessary implication a power to make rule to achieve the stated objectives. We are satisfied that this implied power is wide enough to comprehend rules permitting the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it is in truth bona fide correspondence between a prisoner and a solicitor and to stop letters which fail such scrutiny. But it is a rule in much wider terms that needs to be justified: in particular the difference in the powers governing actual and contemplated litigation must be justified. When Mr Caffery turns to the distinction in the rules between current and possible civil proceedings his explanation is less convincing. He stated:
"If an inmate claims to be party to legal proceedings, not only can he be requested to provide evidence to corroborate that assertion but other sources can be checked to provide objective proof. Likewise, if an inmate is subject to a forthcoming adjudication then the matter is capable of straightforward verification. On the other hand, where an inmate is not party to proceedings, the potential for abuse is greater and thus the prime objective of securing control in a prison is weakened. This is because where an inmate is not party to proceedings, there are no external means of proof beyond what is said by the parties to the correspondence.
In an ideal world, if it could be guaranteed that professional legal advisers would never be parties to criminal activities (whether deliberate or not) or otherwise abuse their position, the Respondent's concern would not arise. The possibility does exist however, albeit in a small minority of cases, that complete unlimited access could lead to abuse."
In our view this reasoning is an inadequate foundation for Rule 33 (3) so far as it affects correspondence passing between a prisoner and a solicitor about possible civil proceedings. It does not attempt to establish a need for a general right to read as a matter of routine legal correspondence passing between a prisoner and a solicitor. It does not provide any justification for stopping letters on the ground of objectionability. Mr Caffery's affidavit goes no further than establishing the need for prison authorities to have the power to ascertain that purported exchanges between a prisoner and a solicitor are genuine communications between a client and solicitor, and to stop letters which fail such scrutiny. To that extent there is no dispute in this case. But there is nothing in Mr Caffery's affidavit, or in counsel's arguments, which establish that objectively there is a need in the interests of the proper regulation of prisons for a rule of the width of Rule 33 (3). And in passing it ought to be noted that at H.M. Prison, Blundeston, the practice is only to examine letters purportedly passing between a prisoner and a solicitor if there is reason to doubt that it is genuine correspondence between a solicitor and client.
Taking away basis rights by subordinate legislation
It is now possible to consider Mr Fitzgerald's primary submission. He submitted that the words "may make rules for the regulation.....of prisons" do not by necessary implication authorise Rule 33 (3) in the wide sense in which we have construed it. He submitted that Rule 33 (3) authorises interference as a matter of routine with a prisoner's right of unimpeded access to the courts and the inseparable right of unimpeded access to legal advice and assistance.
Mr Jay submitted that the decision of the house of Lords on the cross appeal in Raymond v. Honey points to an opposite conclusion. The appeal related to the prison governor's refusal to allow an application to commit the governor for contempt of court to be sent to the court. The House of Lords unanimously held that a contempt was established. The cross appeal was concerned with an earlier act of the governor who refused to allow a letter from the prisoner to his solicitor to be forwarded. The Divisional Court held, and the House of Lords agreed, that the governor had reasonable cause under Rule 37 A(1) to cause the letter to be opened. The question was whether the governor was entitled to stop the letter. The Divisional Court thought he was so entitled. Lord Wilberforce contented himself with saying that the correctness of this ruling was open to doubt. Lord Bridge said that the governor had no right to stop the letter. In both speeches the evidence is described as less than clear. On the facts of the case the House of Lords concluded that the prisoner had not established a contempt of court. But Lord Bridge expressly said that an unjustified stopping of a letter sent by a prisoner to his solicitor is capable of amounting to a contempt of court. Lord Wilberforce clearly took the same view. In these circumstances the decision on the cross appeal in Raymond v. Honey does not yield support to Mr Jay's submission that Rule 33 (3) does not impede a prisoner's basic rights.
Mr Jay also sought support in a first instance decision in Scotland by Lord Caplan in Leech v. Secretary of State, handed down on 26 October 1990, which is still unreported. The appellant in the present case was the applicant for judicial review proceedings in Scotland. The question was when the prison authorities in Scotland were entitled to read and stop correspondence between Mr Leech, then a prisoner in Scotland, and his legal advisers about possible civil proceedings. Rule 74 (4) of the Prison (Scotland) Rules is to the following effect:
"Subject to the provisions of Rule 50 (4) every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable."
This provision is similar, although not identical, to Rule 33 (3) of our Prison Rules. Lord Caplan held that as a matter of interpretation Rule 74 (4) covers correspondence between a prisoner and a solicitor. He then had to consider a submission that Rule 74 (4) was ultra vires sections 39 (1) and 42 (1) of the Prison (Scotland) Act 1989 which authorise the making of rules for the regulation of prisons. After a review of Raymond v. Honey and Anderson Lord Caplan rejected the submissions. Lord Caplan said:
"I am not aware of any indication in our law that a prisoner is entitled to communicate with his solicitor by the particular means of correspondence. What is essential is that the prisoner should have the opportunity for private communication with his solicitor. If the prisoner was not allowed to see his solicitor then of course having the opportunity to write to him may be a necessary right if he is to have any access at all to legal advice. That he should have some access to legal advice is of course intrinsic to his right to resort to the courts. In the present case the same Statutory Instrument which restricts freedom of correspondence provides in Rule 76 that the prisoner is entitled to have visits from his solicitor and that such visits will be outwith the hearing of a prison officer. It follows that if a prisoner wants to consult a legal adviser he can arrange for him to visit the prison."
The logic of this reasoning is that a rule which authorises a governor to withdraw the right to conduct legal correspondence entirely from prisoners would be lawful provided that the rules allow prison visits by the solicitor. A prisoner can choose his solicitor but he cannot choose his prison. If the prisoner is detained in a prison on the Isle of Wight and his solicitor practises in Newcastle the withdrawal of the prisoner's right to correspond with his solicitor could seriously impede his access to justice. We do not accept the submission that Lord Caplan's reasoning is applicable to the legal position in England.
It is part of the ratio decidendi of Raymond v. Honey that section 47 (1) of the Act does not authorise denial or interference with a prisoner's right of unimpeded access to a court. It is part of the ratio decidendi of Anderson that unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts forms an inseparable part of the prisoner's right of access to the courts themselves and that section 47 (1) does not authorise the creation of an impediment to the prisoner's right of access to a solicitor. The question is whether Rule 33 (3) creates an impediment to these basic rights. Frequently, it may not be possible for a solicitor to visit a prisoner as soon or as often as may be required. Moreover, correspondence will often by the most effective medium, e.g. in giving advice. A prisoner may wish to obtain legal advice about the conduct of those in authority over him. He may want to know whether he has a remedy against the police, individual prison officers, the governor of the prison or the Home Office. In the Solosky v. The Queen 105 D.L.R. (3rd) 745, at 760 Dickson J described the impact of a right to read a prisoner's correspondence as follows:
"Nothing is more likely to have a chilling effect upon the frank and free exchange and disclosure of confidences, which should characterise the relationship between inmate and counsel, than knowledge that what has been written will be read by some third person, and perhaps used against the inmate at a later date."
We respectfully agree. An unrestricted right to read correspondence passing between a solicitor and a prisoner must create a considerable disincentive to a prisoner exercising his basic rights as expounded in Honey v. Raymond and Anderson. In our view it creates a substantial impediment to the exercise of those basic right. And the right to stop letters on the grounds of objectionability or prolixity means that access to a solicitor by the medium of correspondence can be denied altogether. In our view Rule 33 (3) is ultra vires so far as it purports to apply to correspondence between prisoners and their legal advisers.
Campbell v. The United Kingdom
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. United Kingdom 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 Article 8 of the European Convention on Human Rights. 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. The United Kingdom. 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 section 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. In Solosky v. The Queen, supra, Dickinson J explained this idea in the following concrete terms (at 761 762):
"In my view the 'minimum extent necessary to establish whether it is properly the subject of solicitor client privilege' should be interpreted in such manner that (i) the contents of an envelope may be inspected for contraband; (ii) in limited circumstances, the communication may be read to ensure that it, in fact, contains a confidential communication between a solicitor and client written for the purpose of seeking or giving legal advice; (iii) the letter should only be read if there are reasonable and probable grounds for believing the contrary, and then only to the extent necessary to determine the bona fides of the communication; (iv) the authorized penitentiary official who examines the envelope, upon ascertaining that envelope contains nothing in breach of security, is under a duty at law to maintain the confidentiality of the communication."
A rule along broadly similar lines would in our view by necessary implication be within the scope of the rule making power under section 47 (1). But Rule 33 (3) is extravagantly wide. The very technique of dealing in one provision with ordinary correspondence and legal correspondence is flawed. In our view the Secretary of State strayed beyond the proper limits of section 47 (1) when he made Rule 33 (3). We would allow the appeal and grant a declaration the Rule 33 (3) is ultra vires so far as it purports to apply to correspondence between prisoners and their legal advisers. It follows that Rule 33 (2) is also ultra vires but we agree with Mr Jay that there is no need for a formal declaration to that effect. No further relief seems necessary.
LORD JUSTICE NEILL: The appeal will be allowed for the reasons set out in the judgment of the Court which has been handed down.
MR FITZGERALD: My Lord, I just apply then for costs both here and below. The Applicant was legally aided, but in our duty to the legal aid board we must seek costs both here and below.
LORD JUSTICE NEILL: Mr Jay?
MR JAY: My Lord, that follows.
LORD JUSTICE NEILL: Yes. Thank you both very much.