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

A general power to regulate and manage prisons does not, by necessary implication, authorise a substantial interference with a prisoner's constitutional right of unimpeded access to the courts or the inseparable right of access to legal advice about contemplated proceedings. The more fundamental the right and the more drastic the interference, the clearer the implication required.

Prison Act 1952, section 47(1), permits only the minimum screening of prisoner–solicitor correspondence needed to establish that it is bona fide legal correspondence. It does not authorise routine reading or stopping on grounds of objectionability or length. Accordingly, Rule 33(3) was ultra vires insofar as it applied to correspondence between prisoners and their legal advisers.

The applicant, a prisoner, sought judicial review of provisions governing correspondence with legal advisers before legal proceedings had been instituted. He contended that the provisions allowed prison staff to read and stop legally privileged communications unless he was already a party to proceedings.

Webster J dismissed the application on 22 October 1991. The applicant appealed. Although he was then detained in Scotland, the Court of Appeal held that the appeal should proceed because the issue had wider public-law significance and was not necessarily academic.

The central issue was whether Rule 33(3) of the Prison Rules 1964, made under section 47(1) of the Prison Act 1952, was ultra vires insofar as it authorised the reading and stopping of correspondence between a prisoner and a solicitor about contemplated civil proceedings.

1. Appeal allowed. The court granted a declaration that Rule 33(3) of the Prison Rules 1964 was ultra vires insofar as it purported to apply to correspondence between prisoners and their legal advisers. Lord Justice Steyn delivered the judgment of the court, and Lord Justice Neill expressly agreed.

2. Rule 33(3) applied by its ordinary and unambiguous language to letters between prisoners and solicitors. It created an unrestricted power to read or examine every letter. It also created a wide power to stop a letter if its contents were objectionable or of inordinate length. It could not be construed as limited to checking whether correspondence was genuinely between solicitor and client.

3. A convicted prisoner retains civil rights unless they are removed expressly or by necessary implication. The right of unimpeded access to the courts is a constitutional right. Access to a solicitor for advice and assistance about possible civil proceedings is inseparable from that right: see Raymond v. Honey [1983] AC 1, Golder v. United Kingdom (1975) 1 E.H.H.R. 524, and Regina v. Secretary of State for the House dependent, Ex parte Anderson [1984] 1 QB 778.

4. Section 47(1) did by necessary implication permit a rule allowing prison authorities to inspect correspondence sufficiently to establish whether it was bona fide legal correspondence, and to stop letters which failed that scrutiny. It did not authorise routine reading of genuine legal correspondence, or its suppression for objectionability or prolixity. Those powers would chill frank solicitor–client communications and could materially impede access to legal advice and the courts.

5. The special protection for correspondence in current proceedings under Rule 37A(1) exposed the lack of any material justification for treating contemplated proceedings differently. The asserted security rationale established no need for the substantially wider Rule 33(3) power. The inordinate-length limb was in any event severable. Rule 33(2) was also ultra vires to the same extent, but no formal declaration concerning it was necessary. The applicant received his costs here and below.

• Court of Appeal: Allowed the appeal and declared Rule 33(3) of the Prison Rules 1964 ultra vires insofar as it applied to prisoner–solicitor correspondence.
• Queen's Bench Division: Webster J dismissed the application for judicial review on 22 October 1991.