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Published online by Cambridge University Press: 02 January 2018
In 1983, a report by the organisation JUSTICE into the state of prisons considered that the ability of convicted prisoners to communicate with those outside prison, by letters or visits was, as prison regulations then stood, ‘severely restricted’. Recent years have, however, witnessed a relaxation in the controls imposed on prisoners’ legal and non-legal correspondence, including the abolition of the prior and simultaneous ventilation rules and many restrictions affecting those convicted of less serious offences. Despite this fact, a number of restrictions remain, and the practices of prison authorities in opening, examining, reading and stopping legal mail continue to occupy domestic and international courts.
1 Justice in Prison (1983) p 13.
2 The prior ventilation rule was abolished in December 1981 by standing order 5B 34j. The simultaneous ventilation rule, which was introduced in its place, was, in turn, withdrawn in as far as it applied to correspondence with a solicitor concerning contemplated legal proceedings after the Divisional Court ruling in R u Secretary of State for the Home Dept exp Anderson [1984] QB 778. Under Standing Order 5 (1989) the rule no longer applies to any category of correspondence. On the relaxation of controls at open establishments, see Home Office Standing Order 5B 3 1,32 (1989), and the Report of the Work of the Prison Services 1986–87, (Cm 246) at 20. For Category C prisoners and closed young offender establishments see Report for 1987–88 (Cm 516) at 32. Further discussion is to be found in the Woolf Report – Prison Disturbances April 1990, Report of an Inquiry by the Rt Hon Lord Justice Woolf and His Honour Judge Stephen Tumin (1990–91) (Cm 1456) paras 14.263–264; Bailey, Harris and Jones Civil Liberties: Cases and Materials (1991) ch 12.
3 (1993) Times, 20 May; Lexis.
4 See inter alia David Kearney v Minister for Justice Ireland and the A-G [1986] IR 116; Wolff v McDonnell (1974) 418 US 539,41 L Ed 2d 935; Bailleaux u Holmes (1959) DC Or 177 F Supp 361: R v Secretary of State for the Home Department ex p Leech [1992] COD 168 where the interests of national security were also cited by the Home Office as a reason for restrictions. Discussion of these and other materials can be found in Treverton-Jones Imprisonment: The Legal Status and Rights of Prisoners (1989) ch 6; Maguire, Vagg and Morgan Accountability and Prisons (1985) ch 3 (Richardson Judicial Intervention in Prison Life); Marin Inside Justice (1983). On US materials, see Spivey, 47 ALR (3d) 1150.
5 See Carothers v Follette 1970 DC NY 314 F Supp 1014; Golder v UK (1975) 1 EHRR 524; Silver and ors v UK (1983) 5 EHRR 347; Raymond v Honey [19831 1 AC 1.
6 Prison Rules SI 1964/388 (as amended). Prison (Scotland) Rules SI 1952/565 (as amended). At the time of writing, work is in progress on a review of the Scottish Rules.
7 Criminal Justice Act 1967, s 66(4).
8 Amendments to standing orders are issued as circular instructions which may later be incorporated into amended standing orders. See Further Halsbury's Laws of England, 4th edn (1982) vol 37 pp. 728–9.
9 Raymond v Honey op cit n 5 at 13 (Lord Wilberforce). In Silver op cit n 5 it was conceded by the UK that standing orders and other administrative instructions lacked the force of law. For judicial discussion of circular instructions see R v Deputy Governor of Parkhurst Prison and ors ex p Hague [1991] 3 WLR 340.
10 For example, Leech v Secretary Of State for Scotland (1991) Lexis; R v Secretary of State for Home Dept ex p Anderson op cit n 2.
11 3 EHRR 475 App No 5947172 et seq.
12 Prison Department Standing Order 5 (Amendment No 326 (1981)).
13 Commissioners of Custom and Excise v Cure and Deeley [1962] 1 QB 340; Hoffman La Roche v Secretary of State for Trade [1975] AC 295, at 365, 372.
14 Op cit n 5 a t 10.
15 City of Edinburgh DC v Secretary of State for Scotland 1985 SLT 551, 556.
16 Following Council of Civil Service Unions v Min for the Civil Service [1985] AC 374.
17 Raymond v Honey op cit n 5; R v Secretary of State for Home Dept e x p Anderson op cit n 2 at 793 per Goff LJ.
18 Ibid.
19 Failure to establish this point to the court's satisfaction meant that Raymond failed in his attempt to have the Governor of HM Prison Albany committed for contempt.
20 [1992] COD 168.
21 Rule 37(1). Once a writ has been issued, the prisoner becomes a ‘party to legal proceedings’ and enjoys confidential correspondence with his legal adviser under rule 37(A) unless the Governor has reason to suppose that the correspondence contains matter not relating to the proceedings.
22 Citing with approval dicta from Solosky v The Queen (1980) 105 DLR (3d) 745 at 760.
23 1991 SLT 910.
24 Op cit n 10.
25 See further, Jowell and Lester [1987] PL 368 at 368–371, criticised by Craig in Administrative Law (1989) (2nd edn) at 297–298.
26 Drawing from notions advanced in Solosky op cit n 22.
97 Judgment of 25/3/92, Series A No 233.
28 Op cit n 10.
29 The requirement that the prisoner be present when mail is opened derives from the ‘friendly settlement’ in the case of McComb v UK (1986) ECHR App No 10621/83.
30 In the Outer House, the petitioner had initially challenged rule 74(4) on the twin grounds of illegality and irrationality. The latter submission was dropped on appeal to the Inner House after the lower court refused to declare there to be an absence of sound grounds for requiring control over prisoners' legal mail. 1991 SLT 910.
31 Such as interviews under rule 76.
34 Op cit n 13 See also Wade Administrative Low (1988) (6th edn) ch 12.
33 [1986] AC 240 at 247.
34 Ibid at 250.
35 R v Secretary of State for the Environment, exp Hammersmith LBC [1991] I AC 521, 595–597.
36 Op cit n 33 at 250.
37 An MP must move a ‘prayer’ at the end of a day's business. This requires a quorum of forty MPs and debates on prayers cease at 11.30 pm, or, with the Speaker's discretion, are adjourned. See further Wade, op cit n 32 at 888–889.
38 Op dt n 5. The rule was replaced by the simultaneous ventilation rule which was, in turn, deemed unlawful by the Divisional Court in ex p Anderson op cit n 2. See also the European Court ruling in Campbell, Fell v UK (1985) 7 EHRR 165. In Silver, the Home Secretary's refusal to allow the prisoner to contact his solicitor was also ruled in violation of article 6(1) (the guarantee of a fair hearing in determination of a person's civil rights held to include right of access to a lawyer for advice about possible proceedings), see also Golder op cit n 5.
39 (1979–80) 1 EHRR 425. See now rule 37A(4).
40 Op n't n 29. See now Standing Order Ma 8. In England and Wales, see S 05 32(3)(c). This protection does not extend where the correspondence relates to contemplated proceedings only. For a similar safeguard in US law, see Wolff u McDonnell op cit n 4.
41 (1991) 13 EHRR 597.
42 Some of the applicant's particular allegations had appeared in the press and the Scottish Office was keen to prevent a similar occurrence. Once the assurance had been given the letters were posted.
43 Standing Order Ic1 (3)(d). This required complaints of prison treatment to be addressed to the Secretary of State or the Visiting Committee.
44 (1979) 2 EHRR 245.
45 See Silver op cit n 5, paras 286–290.
46 If it was conceded that an effective remedy exists in validity disputes, this is in direct conflict with Silver.
47 Op cit n 27.
48 The Sunday Times u UK (No 2) (1992) 14 EHRR 229.
49 S v Switzerland, Judgment of 28/11/91, Series A No 220.
50 This presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused.
51 Under Ma 10 such correspondence may not contain escape plans; material jeopardising the security of an establishment; plans or material tending to assist or encourage the Commission of any disciplinary offence or criminal offence; material which could jeopardise national security or obscure; or coded messages which are not readily intelligible or decipherable.
52 Op cit n 27.
53 Home Office (1989).
54 HC Deb (1990–91) vol 195, col 118 (written answers).
55 The sort of inquiry envisaged is that specified by the House of Lords in Secretary of state for Education u Tameside MB [1977] AC 1014.
56 Op cit n 2, para 14.271.
57 Johnson v Whitehouse [1984] RTR 38 at 47, per Nolan J. See further Bevan and Lidstone The Investigation of Crime – A Guide to Police Powers (1991) at 4–6.
58 Op cit n 54.
59 Of course, proportionality is not recognised as a head of challenge in judicial review in our jurisdiction. R v Home Secretary ex p Brind [1991] 1 AC 696 at 750. (Roskill), 762–3 (Ackner) and 766–7 (Lowry). Cf the remarks of Lord Diplock in CCSU u Min for Civil Service [1985] AC374 at 410–4ll.
60 Op cit n 22.
61 In 1977, Circular instructions relating to communications with outsiders totalled in excess of 500. HLDeb (1978) vol 387, col 206.
62 This proposal contrasts with the Woolf Report's recommendation that the prisoner merely be told of the fact of interference. Op cit n 2, para 14.272.
63 The introduction of telephones into prisons should also be applauded. Op cit n 54.
64 Op cit n 2, para 14.273.