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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 [1993] EWCA Civ 12 (19 May 1993) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1993/12.html Cite as: [1993] 3 WLR 1125, [1994] QB 198, [1993] EWCA Civ 12 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
QUEEN'S BENCH DIVISION
Strand London WC2 |
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B e f o r e :
LORD JUSTICE STEYN
and
LORD JUSTICE ROSE
____________________
R E G I N A | ||
v | ||
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
The principal issue:
"(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
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."
"(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."
"(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."
"(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."
"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."
"(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)......"
"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."
On 29 November 1990 Mr. Justice Garland granted Mr Leech leave to move for judicial review.
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 events subsequent of judgment
Locus standi
The interpretation of Rule 33 (3)
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 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 [1983] 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 [1990] 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.
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 [1984] 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."
"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."
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 [1988] 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)
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 [1990] 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.
"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."
"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."
Taking away basis rights by subordinate legislation
"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."
"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."
Conclusion
"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.