Nilsen v Full Sutton Prison & Anor

A sentence of imprisonment may lawfully carry restrictions on a prisoner’s freedom of expression as natural incidents of penal imprisonment, including restrictions taking account of effects outside prison. The restriction must be prescribed by law, pursue a legitimate aim, be necessary in a democratic society and be proportionate.

A tightly drawn restriction on publishing material about a prisoner’s crimes may satisfy Article 10 where it preserves exceptions for serious representations about conviction or sentence and serious comment on crime, justice or the penal system. Such a restriction is materially different from a blanket ban.

Dennis Nilsen, serving six life sentences and a whole life tariff, wished to receive and revise an autobiography describing his murders for possible publication. The Secretary of State withheld the manuscript under Paragraph 34 of Prison Standing Order 5, and the Governor refused to return it to him.

Maurice Kay J dismissed Mr Nilsen’s judicial review claim on 19 December 2003. The appeal concerned whether the Standing Order was authorised by the Prison Act 1952, whether it was compatible with Article 10, and whether its application to the manuscript was disproportionate.

1. Appeal dismissed. The decision to withhold the manuscript was lawful, and the appellant’s Article 10 challenge failed.

2. Section 47 of the Prison Act 1952 did not require every aspect of the penal regime to be expressly specified in primary legislation. The power to regulate prisoners included power to have regard to the natural incidents of penal imprisonment. Those incidents may change with public attitudes. Public perception and the expectations of right-thinking members of the democracy may therefore be considered when identifying permissible restrictions.

3. The restriction in Paragraph 34(9)(c), preventing publication of material about a prisoner’s crimes subject to exceptions for serious representations about conviction or sentence and serious comment on crime, justice or the penal system, was tightly drawn. It appropriately marked the boundary between acceptable and unacceptable conduct and fell within the statutory power. Raymond v Honey [1983] AC 1 concerned access to the courts and did not support the wider submission that the Prison Act was confined to matters within prison. The reasoning in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 and R (Mellor) v Secretary of State for the Home Department [2001] EWCA Civ 472 supported recognising some restrictions as incidents of punishment, while distinguishing a blanket prohibition.

4. The Standing Order satisfied the Article 10 requirement that an interference be prescribed by law. Although the Standing Orders were administrative guidance, the relevant exception was sufficiently clear and readily capable of application by a prison Governor. The Strasbourg decisions in Bamber (Application No. 33742/96) and Silver and Others v United Kingdom (1980) 3 EHRR 475 supported the relevance of the ordinary and reasonable requirements of imprisonment. Hirst v United Kingdom (2004) 38 EHRR 825 did not establish that imprisonment could never carry restrictions on other fundamental rights.

5. The application was proportionate. Earlier publication of an account of the crimes and the existence of copies outside prison did not require the prison service to waive its rules. The appellant had not published the manuscript in its present form, wished to revise it, and provided no evidence of an intention to transform it into material within the stated exceptions. The appeal was dismissed with costs pursuant to section 11 of the Access to Justice Act 1999; detailed assessment of publicly funded costs was ordered and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): On 17 November 2004, the court dismissed the appeal, ordered costs and refused leave to appeal to the House of Lords.
• High Court of Justice, Queen’s Bench Division (Administrative Court): Maurice Kay J dismissed the appellant’s judicial review application in a judgment delivered on 19 December 2003.