R v Secretary of State for the Home Department, Ex parte Simms (R v Governor of Whitemoor Prison, Ex parte Main)

A prisoner retains every civil right which has not been removed expressly or by necessary implication. Restrictions on freedom of expression must respond to a pressing social need and be proportionate to a legitimate aim. The stronger the interference with a fundamental right, the stronger the required justification.

Under the principle of legality, general statutory language does not override fundamental rights. That principle applies equally to subordinate legislation. Prison regulations expressed generally must therefore be construed subject to those rights.

An indiscriminate policy barring professional interviews with journalists investigating possible miscarriages of justice unlawfully restricts freedom of expression and access to justice. Prison authorities may require a proper case and impose safeguards for order and discipline, but they cannot administer those powers as a blanket prohibition.

Two prisoners serving life sentences continued to maintain their innocence after their applications for leave to appeal had been refused. Each wished to meet a journalist who might investigate his conviction and publicise evidence capable of supporting a reference to the Court of Appeal. The prison governors would permit visits only if the journalists undertook not to use material obtained during them for professional publication.

Latham J held that the blanket prohibition was unjustified and that the Home Secretary's policy was unlawful. The Court of Appeal allowed the Home Secretary's appeal and reversed that decision: [1999] Q.B. 349.

The consolidated appeals raised whether paragraphs 37 and 37A of Prison Service Standing Order 5 were beyond the statutory power and whether the policy and individual decisions made under them lawfully restricted prisoners' freedom of expression and access to justice.

1. Disposition. The House allowed both appeals and declared the Home Secretary's blanket policy, and the governors' decisions made pursuant to it, unlawful. The impugned decisions were quashed. Lord Hobhouse would not independently have quashed them on the facts, but did not oppose the order.

2. Prisoners' retained rights. Lord Steyn, whose speech was agreed to by Lord Browne-Wilkinson and Lord Hoffmann, held that imprisonment removes liberty and necessarily restricts autonomy, movement and association. A convicted prisoner nevertheless retains every civil right not removed expressly or by necessary implication. Freedom of expression is especially important where it enables investigation of an allegedly unsafe conviction and access to the machinery for correcting miscarriages of justice.

3. Justification for interference. Per Lord Steyn, freedom of expression is not absolute, but a substantial interference requires cogent justification. A restriction must answer a pressing social need and be proportionate to its legitimate purpose. The evidence showed that investigative journalism had helped expose miscarriages of justice, that oral interviews could be practically indispensable, and that comparable interviews had not been shown to disrupt prison discipline. The Home Secretary's evidence therefore failed to justify an indiscriminate ban.

4. Principle of legality. Lord Steyn applied the presumption that general words do not curtail fundamental rights. Lord Hoffmann explained that Parliament must confront any intended interference squarely and use express language or necessary implication. That constitutional presumption applies to subordinate legislation as well as Acts of Parliament. Accordingly, the general powers in section 47(1) of the Prison Act 1952, and paragraphs 37 and 37A of Prison Service Standing Order 5, did not authorise a blanket restriction on interviews serving freedom of expression and access to justice.

5. Lawful regulation. The Standing Orders were themselves lawful when properly construed. Lord Steyn accepted that journalistic visits require more careful regulation than social visits and may depend upon a proper foundation laid through correspondence. Lords Hobhouse and Millett likewise considered that professional visits could be exceptional, subject to demonstrated need, supervision and safeguards. Those controls may address prison order, discipline, victims' interests and improper publication, but cannot be administered so as to extinguish the possibility of a necessary interview.

6. Individual decisions. Lord Millett concluded that the governors had applied the unlawful policy without considering the requests on their merits. Lord Hobhouse considered that the particular applications had not established a current need for further professional interviews, but accepted that the Home Department's asserted blanket policy was unreasonable and disproportionate. The formal order allowing both appeals was not opposed by any Law Lord.

1. House of Lords: Allowed both consolidated appeals. It held that paragraphs 37 and 37A were intra vires when properly construed, but declared the blanket policy and the governors' decisions made under it unlawful.
2. Court of Appeal: Allowed the Home Secretary's appeal and reversed Latham J, holding that the restriction was neither ultra vires nor irrational: [1999] Q.B. 349.
3. Divisional Court of the High Court: Latham J upheld the prisoners' challenge. He held that the evidence did not justify a blanket prohibition on using material obtained during a journalistic visit.