Secretary of State for the Home Department, Ex Parte Simms; Secretary of State for the Home Department, Ex Parte O'Brien; Regina v. Secretary of State for the Home Department

The House held that a blanket policy excluding oral interviews between prisoners and professional journalists, or requiring pre-publication undertakings in all cases, was unlawful because it unjustifiably interfered with the prisoners' right to freedom of expression and could deny effective access to justice in cases alleging miscarriage of criminal justice. The court applied the principle of legality: general or ambiguous subordinate rules are to be read so as not to infringe fundamental rights unless Parliament's intention to do so is unmistakably clear. Paragraphs 37 and 37A of Standing Order 5 were held to be intra vires of the Prison Act 1952 but to be read compatibly with prisoners' rights so as not to authorise a blanket ban; the Home Secretary's policy implementing a blanket prohibition was unlawful and the governors' decisions made pursuant to that policy were quashed in the present cases.

This is a consolidated appeal by two life-sentenced prisoners, Simms and O'Brien, who sought judicial review of prison authorities' refusal to permit oral interviews with journalists unless the journalists signed written undertakings not to publish material from those interviews. Both appellants argued that such interviews were necessary to enable investigative journalism to investigate possible miscarriages of conviction and thereby to obtain access to the Criminal Cases Review Commission and, ultimately, the Court of Appeal (Criminal Division). The Home Secretary defended a policy, reflected in paragraphs 37 and 37A of Prison Service Standing Order 5, which in practice produced a blanket exclusion or required broad undertakings from journalists.

(i) Nature of the claim: applications for declarations and quashing of administrative decisions refusing journalistic interviews with prisoners; claim that the Home Secretary's policy and the governors' decisions were unlawful and that the Standing Order provisions were ultra vires.

(ii) Issues framed:

• whether the Home Secretary's policy and the governors' decisions unjustifiably interfered with prisoners' rights of freedom of expression and access to justice;
• whether paragraphs 37 and 37A of Standing Order 5 were ultra vires the enabling power in section 47(1) of the Prison Act 1952;
• if not ultra vires, how the Standing Orders and policy should be construed and applied compatibly with fundamental rights.

(iii) Reasoning and outcome: the House examined the value of freedom of expression, emphasising its role in exposing miscarriages of justice. Evidence before the House established that investigative journalism, including oral interviews, had in numerous cases contributed materially to identifying unsafe convictions and that without oral access such investigation would be seriously impeded. The court applied the Convention-style balancing test (Article 10) and the domestic principle of legality: fundamental rights cannot be overridden by general or ambiguous subordinate provisions. While the Standing Order paragraphs were in general terms and therefore intra vires, they must be read so as not to authorise a blanket prohibition. The Home Secretary's asserted blanket policy was disproportionate and unlawful. Declarations were granted that the policy was unlawful and that the governors' decisions under it were unlawful in the present cases; the House allowed the appeals.

Appeals allowed. The House concluded that the Home Secretary's blanket policy excluding interviews by professional journalists, or requiring unconditional undertakings against publication, was unlawful because it unjustifiably interfered with prisoners' Article 10 rights and could deny effective access to justice. Paragraphs 37 and 37A of Standing Order 5 were not ultra vires of section 47(1) Prison Act 1952 when read in accordance with the principle of legality, but they do not authorise a blanket ban; governors' individual decisions made pursuant to the unlawful policy were quashed in these cases.

Divisional Court (judgment of Latham J. in favour of the prisoners); Court of Appeal reversed Latham J., holding no right to oral interview and upholding the requirement of undertakings (see Regina v. Secretary of State for the Home Department, Ex parte Simms [1999] Q.B. 349). The House of Lords allowed the appeals and granted declarations ([1999] UKHL 33).