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URL: http://www.bailii.org/uk/cases/UKHL/1981/8.html
Cite as: [1981] UKHL 8, [1983] 1 AC 1, [1983] AC 1

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JISCBAILII_CASE_CONSTITUTIONAL

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

    Die Jovis 4° Martii 1982

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

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


    HOUSE OF LORDS

    RAYMOND
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    v.

    HONEY
    (ORIGINAL APPELLANT AND CROSS-RESPONDENT)

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

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


    Lord Wilberforce

    my lords,

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

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

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

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

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

    I deal first with the appeal.

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

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


    2

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

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

    t

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

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

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

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

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

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

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

    " Rule 33: Letters and visits generally.

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

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

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

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


    3

    " Rule 34. Personal letters and visits.

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

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

    " (9) [Not material.]

    " Rule 37: Legal Advisers.

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

    " (2) A prisoner's legal adviser may, with the leave of the Secretary
    " of State, interview the prisoner in connection with any other legal
    " business in the sight and hearing of an officer.

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

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

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

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

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

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

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

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

    Standing Order 29(1):

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

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

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

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

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


    4

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

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

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

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

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

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

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

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

    5

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

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

    Lord Elwyn-Jones

    my lords,

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



    Lord Russell of Killowen

    my lords,

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

    Lord Lowry

    my lords,

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

    Lord Bridge of Harwich

    my lords,

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

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

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

    6

    .

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

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

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

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

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

    313838 Dd 8208150 C2 3/82


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