Law Report: Rule on prisoner's letters invalid: Regina v Secretary of State for the Home Department, ex parte Leech - Court of Appeal (Lord Justice Neill, Lord Justice Steyn and Lord Justice Rose), 19 May 1993

Rule 33(3) of the Prison Rules 1964, which permitted the screening of prisoners' correspondence, was invalid in so far as it purported to apply to communications between prisoners and their legal advisers about contemplated court proceedings.

The Court of Appeal so declared, allowing an appeal by Mark Francis Leech against the dismissal, by Mr Justice Webster on 22 October 1991, of an application for judicial review against the Home Secretary.

Edward Fitzgerald (B M Birnberg) for the appellant; Robert Jay (Treasury Solicitor) for the Home Secretary.

LORD JUSTICE STEYN, giving the judgment of the court, said that section 47(1) of the Prison Act 1952 empowered the Secretary of State to make rules for the regulation and management of prisons.

Rule 33 of the Prison Rules 1964 (SI 388) provided: '(3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length.'

Rule 37 provided that a prisoner's legal adviser in any proceedings, civil or criminal, to which the prisoner was a party should be afforded reasonable facilities for interviewing him in private.

Rule 37A provided that a prisoner might correspond with his legal adviser in connection with any legal proceedings to which he was a party, and that unless the governor had reason to suppose any such correspondence contained material not relating to the proceedings it should not be read or stopped under rule 33(3).

Both rules 37 and 37A referred to a prisoner who was party to legal proceedings. Where no proceedings had been started, a prisoner's correspondence with his lawyer remained subject to screening under rule 33(3).

The applicant prisoner contended that the Prison Rules were ultra vires in so far as they sought to interfere with the privileged relationship between solicitor and client by insisting that, for prisoners, that privileged relationship could only exist after the commencement of proceedings.

The language of rule 33(3) was clear and unambiguous and their Lordships could not accept the suggestion that it was not apt to cover correspondence with a solicitor. It covered 'every letter to and from a prisoner'.

The question was whether section 47 by necessary implication authorised the making of a rule of the width and scope of rule 33(3).

It was an axiom of English law that a convicted prisoner retained all civil rights which were not taken away expressly or by necessary implication. But it was obvious that a power to make rules to regulate prisons must include a power to make some rules about prisoners' correspondence.

By necessary implication, section 47(1) conferred a rule-making power which might limit a prisoner's general civil rights in respect of the confidentiality both of his general correspondence, and of his communications with solicitors and other professional persons.

Every citizen had a right of unimpeded access to a court, however, and it was clearly established that a prisoner's unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings formed an inseparable part of the right of access to the court itself.

It followed that section 47(1) did not authorise the making of any rule which created an impediment to the free flow of communications between a solicitor and a client about contemplated legal proceedings.

In any case, no objective need for a rule such as rule 33(3) in the interests of regulation of prisons could be demonstrated.

Judged in the context of a necessary implication into the rule-making power of section 47(1), there was no justification for the prisoner's rights of access to justice being dependent upon whether a writ had been issued or not.

Their Lordships accepted that section 47(1) authorised some screening of correspondence passing between a prisoner and a solicitor, but only to the minimum extent necessary to ensure that the correspondence was in truth bona fide legal correspondence. Rule 33(3) was extravagantly wide.