Chester, R (on the application of) v The Governor of HMP Wakefield

A prisoner’s fundamental right to unimpeded access to the courts and legal advisers may be restricted only in exceptional circumstances. Rule 39 of the Prison Rules 1999 permits privileged correspondence to be opened for examination where there is reasonable cause to believe that it contains an illicit enclosure. A prison may adopt a proportionate policy requiring apparently privileged correspondence to be checked where reliable intelligence indicates that the privilege is being abused, including through forged markings. The policy must remain proportionate, must not involve reading the correspondence unless the rule’s stricter conditions are met, and must be kept under constant review. In an appropriate case, allowing the prisoner to open the correspondence in the presence of staff may provide an additional proportionate safeguard.

The claimant, a life prisoner at HMP Wakefield, challenged the prison’s policy for handling correspondence apparently covered by Rule 39. The policy treated handwritten envelopes, or correspondence giving staff cause for concern, as liable to be opened in the prisoner’s presence so that staff could check for illicit enclosures. The claimant argued that the policy unlawfully interfered with confidential communications from legal advisers and courts and amounted to a disproportionate blanket approach.

The central issue was whether the policy, and its application to the claimant’s correspondence, struck a lawful and proportionate balance between the prisoner’s fundamental rights and the prison’s obligation to prevent illicit items entering the prison.

1. The application was dismissed. The policy and the procedures adopted in relation to the claimant’s correspondence were lawful.
2. A prisoner’s right to unimpeded access to the courts and legal advisers is fundamental. Interference is permissible only in exceptional circumstances. Rule 39 distinguishes between examination for illicit enclosures and the more serious measures of reading or stopping correspondence.
3. The court accepted that reliable intelligence showed that Rule 39 correspondence could be abused to introduce drugs or pornography, including by using counterfeit stationery, legal stamps or franking marks. That provided a sufficient basis for treating handwritten envelopes from legal advisers as giving rise to concern. On balance, it also justified the policy in relation to correspondence apparently emanating from courts, despite the absence of evidence that court franking marks had actually been forged.
4. The policy did not unlawfully compromise confidentiality because the proposed check involved examining the correspondence for illicit enclosures without reading its contents. The fact that the claimant had never abused the procedure did not prevent a general security policy applying to him.
5. The policy had to be kept under constant review. A policy that was introduced to address a particular security problem could become unlawful if its necessity or possible modification were not monitored.
6. Where a policy is justified, permitting the prisoner to open the correspondence in the presence of staff may be a sensible and proportionate alternative to staff opening it. That approach was particularly appropriate here because there was no underlying suspicion that the claimant was involved in smuggling.
7. The separate complaint concerning correspondence from a Member of the House of Lords did not arise for decision because Rule 39 privilege did not extend to Members of the House of Lords or local councillors under PSO 4411.