R (Daly) v Secretary of State for the Home Department

The House of Lords considered whether a blanket prison service policy requiring prisoners to be absent when their legally privileged correspondence held in their cells is examined was authorised by section 47(1) of the Prison Act 1952 and whether it was compatible with common law rights and the European Convention on Human Rights (article 8). The court reaffirmed that prisoners retain residual civil rights including access to the courts, access to legal advice and legal professional privilege, which may be curtailed only by clear words or by measures no greater than reasonably necessary. Applying these principles and the proportionality approach under the Convention and Human Rights Act 1998, the House held that the blanket exclusion requirement went beyond what was necessary to protect prison security and so infringed legal professional privilege. The policy (paragraphs 17.69–17.74 of the Security Manual) was declared unlawful in so far as it mandated that prisoners must always be absent when privileged legal correspondence in their cells is examined.

Background and facts:

• In 1995 the Prison Service introduced a policy in the Security Manual requiring staff to exclude prisoners from their cells when cells were searched and providing that, during a cell search, legal correspondence must be examined in the absence of the prisoner (paragraphs 17.69–17.74).
• The policy followed recommendations after an escape from HMP Whitemoor in September 1994, which highlighted failures in searching and alleged intimidation of staff by prisoners.
• Mr Daly, a long-term prisoner, challenged the lawfulness of the policy in relation to the requirement that prisoners be absent when their legally privileged correspondence kept in their cells was examined.

Nature of the claim and relief sought:

• Mr Daly sought a declaration that the policy was unlawful and beyond the Secretary of State's powers under section 47(1) of the Prison Act 1952 in so far as it required the absence of prisoners when their privileged legal correspondence was examined.

Issues framed by the court:

1. Whether the blanket policy infringed the common law right of confidentiality attaching to legal professional privilege and, if so, whether any such infringement could be justified by the powers conferred by section 47(1) for the purposes of prison security, order and discipline.
2. Whether the policy was compatible with article 8 of the European Convention and the Human Rights Act 1998, and whether proportionality required a different approach.

Court’s reasoning:

• The court reviewed domestic authorities (including Ex p St Germain, Raymond v Honey, Ex p Anderson, Ex p Leech and Ex p Simms) and Strasbourg jurisprudence (Campbell v United Kingdom) establishing that prisoners retain rights to confidential legal communications and unimpeded access to courts and legal advice.
• The House accepted that some inspection of legal correspondence may be necessary to detect illicit enclosures or abuses of privilege but emphasised that any intrusion must be no more than necessary to achieve legitimate objectives. A blanket rule excluding all prisoners, irrespective of individual circumstances, exceeded what was necessary.
• The court noted less intrusive alternatives already in use (for example, sealing procedures and dedicated search teams, and Scottish practice of searching in the prisoner’s presence) and considered evidence such as the Prisons Ombudsman’s report and local practice at Full Sutton to show practicable alternatives.
• Applying proportionality under article 8 and the Human Rights Act 1998, the House concluded that the policy interfered with article 8 to a greater extent than justified and that section 47(1) did not authorise such a wide intrusion by necessary implication.

Disposition:

• The House allowed the appeal and declared the relevant paragraphs of the Security Manual unlawful to the extent that they required prisoners always to be absent when privileged legal correspondence in their cell was examined. The House refrained from prescribing detailed alternative rules, indicating only the principles such rules should embody.

Appeal allowed. The House held that the blanket policy requiring prisoners to be absent when their legally privileged correspondence in their cells is examined infringed common law legal professional privilege and was disproportionate under article 8 ECHR; section 47(1) of the Prison Act 1952 did not authorise such a wide intrusion and the relevant paragraphs of the Security Manual were unlawful to that extent.

Appeal from the decision of the Court of Appeal in R v Governor of Whitemoor Prison, Ex p Main [1999] QB 349 to the House of Lords ([2001] UKHL 26). The House reviewed earlier domestic authorities such as Ex p Leech [1994] QB 198 and Ex p Simms [2000] 2 AC 115 and Strasbourg authorities including Campbell v United Kingdom (1992) 15 EHRR 137 in reaching its decision.