Simms & Ors, Re

A convicted prisoner retains civil rights unless they are expressly removed or their loss is an inevitable consequence of lawful imprisonment. That principle does not create an absolute right to communicate orally with journalists or to have interview material used professionally. Prison authorities may require a journalist visiting as a friend to undertake not to use material obtained during the visit for professional purposes, provided the restriction is lawful, rational and proportionate. Legal professional privilege extends to a prisoner’s legal correspondence stored in the cell. Nevertheless, security powers may permit random cell searches, including examination of such correspondence so far as necessary to verify its character and detect concealed illicit material. A direction to search but not read correspondence, and to conduct searches in the prisoner’s absence, was lawful on the evidence.

Simms and O’Brien, convicted prisoners who continued to protest their innocence, sought judicial review of requirements that journalists visiting them as friends sign undertakings not to use material obtained during the visits for professional purposes. Latham J upheld their challenges and granted leave to appeal.

Main, another convicted prisoner, challenged a Whitemoor governor’s policy of removing prisoners before random cell searches, including searches of correspondence covered by rule 37A of the Prison Rules 1964. The Divisional Court dismissed his application. The Court of Appeal considered whether the restrictions and search arrangements were ultra vires, or irrational or disproportionate, under the statutory prison rule-making framework.

1. Simms and O’Brien. The appeals were allowed. Lord Justice Kennedy held that imprisonment necessarily curtails freedom of movement, association and communication. A convicted prisoner therefore had no independent right to communicate orally with the media through a journalist. The Prison Service could require a journalist who was a friend or relative to give the undertaking in Standing Order 5, section A, paragraph 37. The restriction preserved the prisoner’s ability to speak to the journalist and to correspond with journalists; it regulated the use of material by the visitor and maintained parity, security and discipline. It was not ultra vires section 47(1) of the Prison Act 1952, nor irrational, disproportionate or otherwise unjustifiable.
2. Lord Justice Judge agreed in the result and emphasised that a prisoner retains civil rights unless expressly removed or lost as an inevitable consequence of lawful detention. That principle could not be extended by analogy from confidential legal communications to an unrestricted media-access right. The existing regime allowed communication with journalists and permitted professional visits exceptionally under stringent conditions. The undertaking was therefore lawful.
3. Main. The appeal was dismissed. Legal professional privilege attached to legal correspondence stored in a prisoner’s cell, so unnecessary inspection impaired the privilege. However, section 47(1) authorised periodic, unannounced and thorough cell searches in closed prisons. Correspondence could be examined only so far as necessary to establish that it was genuine legal correspondence and did not conceal illicit material. Searching in the prisoner’s absence was permissible where justified by security, and the instruction to search but not read the correspondence represented no more than the minimum necessary interference. The arrangements were neither ultra vires nor irrational or disproportionate.
4. The Court treated the precise safeguards for reassuring prisoners that correspondence had not been read as an administrative matter rather than one for judicial determination. Lord Justice Chadwick agreed with the orders. Costs orders were made against the respondent applicants, legal aid taxation was directed, and leave to appeal was refused in all three cases.

• Court of Appeal (Civil Division): allowed the appeals in Simms and O’Brien and dismissed Main’s appeal.
• Divisional Court: Latham J allowed Simms’s and O’Brien’s applications for judicial review on 19 December 1996. The Divisional Court dismissed Main’s application on 16 May 1997.