Nilsen, R (on the application of) v HMP Full Sutton & Anor

A prisoner’s freedom of expression is qualified by the consequences of imprisonment and may lawfully be restricted beyond matters of internal prison order or security. Restrictions on communications must have a legal basis, pursue a legitimate aim under Article 10(2), meet a pressing social need and be proportionate.

Autobiographical writing has no special status under Article 10. The legality and proportionality of restricting it depend on its content and circumstances. A restriction on material intended for publication may be justified where it concerns offending conduct, risks distress or outrage, and falls outside exceptions for serious representations about conviction or sentence or serious comment on crime, justice or the penal system.

The claimant was serving six life sentences for murder at HMP Full Sutton. He sought judicial review of the Governor’s refusal to send him a manuscript autobiography which he had written in prison and which had been held outside prison for several years.

The refusal relied on paragraph 34(9)(c) of Standing Order 5B, concerning material intended for publication about an inmate’s crime or past offences. The claimant argued that the provision was incompatible with Article 10, could not apply to autobiographical material, and had been applied irrationally or disproportionately. The central issues were the legality of the restriction, the status of autobiographical writing, and the proportionality of its application to the manuscript.

1. Application refused. The restriction in paragraph 34(9)(c) of Standing Order 5B was compatible with Article 10 and the decision to withhold the manuscript was lawful.
2. The statutory framework, including sections 1, 4 and 47 of the Prison Act 1952 and rule 34 of the Prison Rules 1999, gave the Secretary of State power to impose restrictions or conditions on communications between prisoners and others. The power was not confined to internal order, discipline or prison security. It could address consequential effects outside prison.
3. Article 10 protects expression that may offend, shock or disturb, but permits proportionate restrictions pursuing legitimate aims such as preventing disorder or crime, protecting morals, and protecting the reputation or rights of others. Paragraph 34(9)(c) was prescribed by law and pursued such legitimate aims.
4. The provision struck a proportionate balance. It preserved communications consisting of serious representations about conviction or sentence and serious comment about crime, the processes of justice or the penal system, while restricting other material intended for publication about offences.
5. Autobiographical writing did not enjoy special protection. The relevant question was whether the restriction was rational and proportionate in the particular circumstances. The Secretary of State was entitled to consider the manuscript’s detailed account of the offences, its lurid and personal content, the risk of later publication in revised form, and the likely distress and public outrage. Existing material in the public domain did not make the restriction futile.
6. The court applied the more intensive proportionality review required in Convention cases. It was not enough to ask whether the decision was within a range of reasonable decisions. The Secretary of State had carried out a proportionality assessment, and it had not been shown to be unlawful or irrational. The Article 1 First Protocol argument failed for the same reasons.

not stated in the judgment.