Regina v. Secretary of State for the Home Department, Ex parte Daly

Prisoners retain the fundamental rights of access to a court, access to legal advice and confidential communication with legal advisers. General statutory language does not authorise their curtailment beyond what is reasonably necessary.

Examining privileged correspondence outside a prisoner's presence impairs confidentiality, even where officers are forbidden to read it. A blanket exclusion policy is unlawful where less intrusive arrangements can meet legitimate security needs. Exclusion may be justified by good cause relating to the particular prisoner, an operational emergency or urgent intelligence.

Review for proportionality under Convention rights is more intensive than traditional rationality review. The court may assess the balance struck, the relative weight of competing interests and whether the measure impairs the right no more than necessary, while respecting the distinct roles of courts and administrators.

Mr Daly, a long-term prisoner, challenged a policy requiring prisoners to be absent while officers searched their cells and examined legally privileged correspondence. He accepted the need for random cell searches, examination of legal papers for illicit material and exclusion during the general search. His challenge concerned the blanket requirement for absence while privileged correspondence was examined.

The policy was made under the general rule-making power in section 47(1) of the Prison Act 1952. The Court of Appeal held that it represented the minimum intrusion consistent with prison security, order and discipline. Mr Daly appealed to the House of Lords.

The central questions were whether examination in the prisoner's absence infringed legal professional privilege; whether that infringement was justified and authorised by section 47(1); and whether the policy was compatible with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

1. Disposition. Lord Bingham of Cornhill delivered the leading speech. Lord Steyn, Lord Cooke of Thorndon, Lord Hutton and Lord Scott of Foscote agreed that the appeal should be allowed. The House unanimously declared paragraphs 17.69–17.74 of the Security Manual unlawful and void insofar as they required prisoners always to be absent when officers examined privileged legal correspondence kept in their cells.

2. Surviving fundamental rights. Per Lord Bingham, imprisonment curtails liberty but does not remove every civil right. The rights of access to a court, access to legal advice and confidential communication under legal professional privilege remain distinct fundamental rights. General words in section 47(1) of the Prison Act 1952 could not authorise a greater interference than was reasonably necessary.

3. Infringement and justification. Per Lord Bingham, examination of privileged papers in the prisoner's absence impaired the free flow of confidential communication. Prisoners could reasonably fear that officers would read the papers despite instructions to the contrary. Some examination was nevertheless legitimate to verify that the correspondence was genuine and did not conceal illicit material or information.

4. Blanket exclusion was excessive. The risks of intimidation, conditioning of staff and disclosure of search methods did not justify excluding every prisoner during examination of legal papers. Exclusion could properly occur where a prisoner's conduct, an operational emergency or urgent intelligence supplied good cause. Alternative procedures, including sealing the papers until they could be examined in the prisoner's presence, showed that a less intrusive policy was workable. The House declined to draft a replacement rule but indicated that presence should be the general position, subject to a good-cause exception.

5. Convention and proportionality. Per Lord Bingham, the same result followed under article 8 because the interference exceeded what necessity required. Lord Steyn, whose observations were adopted by Lord Bingham and agreed with by the other Law Lords, approved the three-stage proportionality test stated in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69. Proportionality may require the court to examine the balance struck, the relative weight given to interests and whether the impairment went beyond what was necessary. It is more intensive than traditional Wednesbury or anxious-scrutiny review, but does not convert judicial review into merits review.

6. Common law foundation. Lord Cooke emphasised that the common law was independently sufficient to protect confidential legal communication. He additionally criticised the extreme-unreasonableness aspect of Wednesbury, while recognising that the depth of review and the deference due depend on the subject matter.

1. House of Lords: In Regina v. Secretary of State for the Home Department, Ex parte Daly [2001] UKHL 26, the House unanimously allowed the appeal. It rejected the Court of Appeal's conclusion and declared the blanket exclusion provisions unlawful and void to the stated extent.
2. Court of Appeal: Held that the policy represented the minimum intrusion into prisoners' rights consistent with prison security, order and discipline. The citation of that decision is not stated in the judgment.