Ponting, R (on the application of) v Governor of HMP Whitemoor & Anor

A prisoner's surviving rights of access to a court, legal advice and confidential legal communications may be restricted only for legitimate prison-management objectives and by proportionate means. Proportionality normally requires consideration of less intrusive measures and whether a fair balance has been struck. The reviewing court conducts a more intensive review than traditional Wednesbury review, while allowing prison governors a discretionary area of judgment.

Where a prisoner's need for word-processing facilities is accepted, conditions regulating their use may engage article 6 or article 8 rights. Conditions directed to security, good order, prevention of crime and protection of legal privilege will be lawful if they do not impair the essence of access to justice and are no more intrusive than the circumstances require.

The appellant was a dyslexic convicted prisoner conducting, or seeking to conduct, several legal matters. The prison authorities refused him use of his own computer but offered a prison word processor under a compact which controlled its hours of use, storage, disks, searches and printing.

Newman J dismissed the application for judicial review before the decisions in Daly and Samaroo and Sezek had clarified the proportionality approach. The appellant challenged specified conditions of the compact as unjustified interferences with access to a court under article 6 and privacy and correspondence under article 8.

The central question was whether the individual restrictions were proportionate in the appellant's circumstances, having regard to prison security, good order, resources and the need to preserve effective access to justice.

1. Appeal dismissed. Schiemann LJ, with Arden LJ agreeing, held that the challenged conditions did not unlawfully interfere with the appellant's Convention rights. Clarke LJ would have found the blanket restriction in condition 2 unlawful on the evidence, but considered that no relief should be granted.

2. Per Schiemann LJ, the court could proceed on the basis that refusal of all computer access might, in an appropriate case, impair a prisoner's access to justice under article 6. Since the prison service had accepted the appellant's medical need, it was appropriate to assume that lack of word-processing facilities would impair access in at least one of his legal matters. The court did not decide that all litigating prisoners are entitled to a computer.

3. Following Daly and Samaroo and Sezek, a governor must identify the legitimate objective, consider whether it can be achieved by less intrusive means, and decide whether the restriction has an excessive or disproportionate effect. The court determines whether a fair balance was struck, with an appropriate discretionary area of judgment for the prison decision-maker. This is more intensive than traditional Wednesbury review but is not merits review.

4. The majority held that limiting possession and use of the word processor to lock-up hours did not deprive the appellant of, or significantly hinder, access to the court. Arden LJ considered that the available evening and weekend time was adequate on the evidence and that prison security, supervision and resource allocation called for substantial deference. Conditions 2 and 3 were therefore lawful.

5. The requirement that files not be passworded, encrypted or hidden engaged privacy and access rights, but was justified by the need to investigate security threats and criminal misuse. Supervised printing was likewise proportionate. Disk limits, separate storage of legal correspondence, and purchase of consumables within the prison either did not engage Convention rights or were reasonable security measures. Condition 14 was to be read as limited to a lawful policy for searching legal papers. The wording concerning ongoing proceedings was acceptable when confined to proceedings already on foot and not to contemplated proceedings.

• Court of Appeal (Civil Division) — appeal dismissed: [2002] EWCA Civ 224 .
• Administrative Court — Newman J dismissed the prisoner's judicial-review challenge. No citation is stated in the judgment.