Cannan v Governor of HMP Sutton & Anor

Prison authorities may require prior clearance of legal documents before a prisoner’s legal visit where the requirement qualifies, but does not negate, confidential lawyer-client communication; meets a clear and pressing security need; and facilitates the efficient conduct of visits.

Such a rule is disproportionate unless accompanied by a clear and flexible proviso. Permission cannot be confined to exceptional circumstances where ordinary situations may make immediate transmission necessary and the documents can be cleared in time. The policy must state its flexibility expressly and must not leave Convention compliance to unexplained or arbitrary officer discretion.

A prisoner at Full Sutton high-security prison sought judicial review of restrictions on taking legal documents into legal visits and receiving or handing documents to legal advisers. The policy required written application at least one day in advance and allowed late transmission only in exceptional circumstances at an officer’s discretion.

Hooper J dismissed the application, holding both aspects of the policy lawful and proportionate. On appeal, the Court of Appeal considered the interaction between the prison rules, section 6 of the Human Rights Act 1998, and the prisoner’s Article 6 right to communicate with legal advisers. The court also considered a replacement Governor’s Order issued after the first-instance hearing.

Appeal allowed unanimously. Sedley LJ gave the leading judgment, with Latham LJ and Mummery LJ agreeing. No formal relief was granted because the policy challenged below had been superseded. There was no order for costs, with detailed assessment of the appellant’s costs.

1. The Court accepted that Article 6 includes ancillary rights of free and confidential communication between a prisoner and a lawyer. Those rights may be qualified where necessary, particularly in a high-security prison, but the qualification must not subvert the right to a fair hearing. Prison authorities must balance individual rights with legitimate security interests.
2. The requirement to apply at least one day before a visit for clearance of documents was lawful and proportionate. It preserved confidentiality, addressed the clear and pressing social need to suppress abuse and contraband, and reduced delays caused by last-minute searches. A bare judicial conclusion that an interference is proportionate is insufficient; the reasons must be explained.
3. The prior-clearance rule required a flexible proviso. Without one, it would not be the least necessary interference with the right. Documents could arrive on the morning of a visit, or become ready only then, and their transmission could be essential to an imminent hearing. Such circumstances need not be exceptional. A refusal is unjustifiable where there is no sound practical reason and the documents can be cleared in time.
4. It was unlawful under section 6 of the Human Rights Act 1998 to leave the proviso to an unexplained discretion of prison officers. Policies must be clear, intelligible and consistently applied.
5. The replacement Governor’s Order improved matters but remained deficient. Its paragraph [7] did not address documents presented without prior notice, and paragraphs [9] and [10] improperly restricted late receipt to exceptional cases. The court declined to draft the prison’s policy but indicated that clear, Convention-compliant rules were required.

1. Court of Appeal (Civil Division) — allowed the appeal from Hooper J’s dismissal of the judicial-review application: [2003] EWCA Civ 1480. No formal relief was granted because the challenged policy had been superseded.
2. High Court, Queen’s Bench Division — Hooper J dismissed the application, holding that the prior-clearance requirement and the exceptional circumstances proviso were lawful and proportionate. No citation for that decision was stated in the judgment.