Bewry, R (on the application of) v Secretary of State for the Home Department

The Secretary of State may make prison rules restricting a board member’s access to records where the restriction does not prevent the board performing its statutory functions. Section 6 of the Prison Act 1952 principally concerns access to prisons and prisoners, hearing complaints and reporting matters to the Secretary of State. It does not confer an unrestricted right to inspect every prison document. The statutory safeguards governing covert human intelligence source material under Part 2 of the Regulation of Investigatory Powers Act 2000 form part of the relevant context. A rule excluding such material from board members’ access was therefore intra vires.

The claimant, a former member of the independent monitoring board at HMP Norwich, sought judicial review of the refusal to permit access to records containing covert human intelligence source material. The claim initially relied on rule 79(3) of the Prison Rules 1999. By the hearing, the issue concerned whether an amendment to that rule, made by the Prison Amendment Rules 2007, was ultra vires section 6 of the Prison Act 1952. The amendment excluded records held for the purposes of, or relating to, conduct authorised under Part 2 of the Regulation of Investigatory Powers Act 2000.

1. The claim was dismissed. The amendment to rule 79(3) was not ultra vires section 6 of the Prison Act 1952.
2. Section 6 requires rules to prescribe the functions of boards of visitors, including hearing prisoners’ complaints and reporting to the Secretary of State matters which the board considers expedient. Those functions may require some investigation. They do not, however, give board members an entitlement to inspect every prison document or prevent secondary legislation from regulating access to records.
3. Section 6 is principally concerned with access to prisons and prisoners. Access to records is conferred and regulated by the Prison Rules. The statutory power in section 47(1) to make rules for the regulation and management of prisons is sufficiently wide to support the amended rule.
4. The court treated the detailed statutory scheme in Part 2 of the Regulation of Investigatory Powers Act 2000 as part of the context. That scheme protects covert human intelligence sources and provides for Commissioners and a Tribunal to monitor compliance. The restriction did not prevent boards from hearing complaints, reporting concerns to the Secretary of State, or bringing suspected misuse to the attention of the Commissioners.
5. The court rejected the submission that excluding covert human intelligence source material emasculated the boards’ core functions. The amendment was consequently valid. Permission to appeal was refused because the issue involved straightforward statutory construction.

This was a first-instance judicial review application. No earlier judgment was stated in the judgment.