R v Secretary of State for the Home Department, Ex parte Leech

A prisoner's constitutional right of access to the courts includes unimpeded access to a solicitor for advice about contemplated proceedings. Routine reading of legal correspondence substantially impedes those rights. The availability of private solicitor visits does not justify that interference.

Section 47(1) of the Prison Act 1952 authorises some screening of legal correspondence by necessary implication. The intrusion must be the minimum necessary to establish that the correspondence is genuine. It does not authorise unrestricted reading or stopping genuine legal correspondence because its contents are objectionable or excessively long. Prison Rule 33(3) was therefore ultra vires so far as it applied to correspondence between prisoners and their legal advisers. The distinction between existing and contemplated proceedings supplied no justification for those wider powers.

Mark Francis Leech, a convicted prisoner, sought judicial review of restrictions imposed by the Secretary of State for the Home Department on confidential correspondence with legal advisers. The regulatory framework generally permitted prison authorities to read correspondence and stop letters considered objectionable or excessively long. Special protection applied to correspondence concerning proceedings to which a prisoner was already a party.

Leech was involved in several legal actions and contemplated further proceedings. He maintained that censorship inhibited what he could tell his solicitors before proceedings were issued. Webster J dismissed his application, approaching the restrictions principally through reasonableness and irrationality.

Leech appealed. Although he had subsequently been detained in Scotland, the Court of Appeal permitted the appeal to proceed because of its public law significance and the possibility of his transfer to England. The principal issue was whether section 47(1) of the Prison Act 1952 authorised Rule 33(3)'s interference with confidential legal correspondence beyond screening necessary to establish its genuineness.

Appeal allowed unanimously. Steyn LJ delivered the judgment of the court, comprising Neill, Steyn and Rose LJJ.

1. Rule 33(3) covered correspondence between prisoners and solicitors. Its general language created an unrestricted power to read or examine letters. The separate power to stop letters depended on a reasonably formed view that their contents were objectionable or that they were excessively long. The provision could not be construed as confined to checking whether correspondence was genuinely between solicitor and client.

2. A convicted prisoner retained civil rights except where removed expressly or by necessary implication. Access to the courts was a constitutional right. Access to a solicitor for advice and assistance about possible civil proceedings formed an inseparable part of it. The court applied the principles in Raymond v Honey and Anderson. Legal professional privilege supported those rights by encouraging candid communication. Statutory interference with such fundamental rights by necessary implication required especially strong justification.

3. The inquiry concerned the scope of the enabling power, rather than whether the rule was irrational. Section 47(1) of the Prison Act 1952 implied power to protect prison security and prevent abuse of purported legal correspondence. It authorised only the minimum intrusion necessary to establish that correspondence was genuine, together with stopping letters which failed that scrutiny. No objective need justified unrestricted reading or stopping genuine correspondence for objectionability or excessive length. Existing and contemplated proceedings presented no material distinction for this purpose.

4. Routine reading substantially inhibited free communication with legal advisers. Stopping letters could deny access through correspondence altogether. Private visits provided an insufficient answer because solicitors might be unable to visit promptly or frequently, and correspondence could be the most effective means of giving advice. The contrary reasoning in the separate Scottish proceedings was not accepted as applicable in England.

5. The decision in Campbell v United Kingdom, concerning article 8 of the European Convention on Human Rights, reinforced the domestic conclusion. Its precise implications for opening suspected abusive correspondence were left unresolved. Broadly similar safeguards to those described in Solosky v The Queen, including limited scrutiny on reasonable grounds and preservation of confidentiality, would fall within the implied rule-making power.

6. A declaration was granted that Rule 33(3) was ultra vires so far as it purported to apply to correspondence between prisoners and their legal advisers. Rule 33(2) was consequentially ultra vires to that extent, but a separate declaration was unnecessary. No further substantive relief was required.

• Court of Appeal: Allowed the appeal and declared Prison Rule 33(3) ultra vires so far as it applied to correspondence between prisoners and their legal advisers.
• High Court, Queen's Bench Division: Webster J dismissed the judicial review application on 22 October 1991.
• High Court, Queen's Bench Division: Garland J granted leave to apply for judicial review on 29 November 1990.