Law Report: 10 December 1997: Journalists visiting prisoners must sign undertaking

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Neither the requirement that a journalist visiting a prisoner as a friend should sign an undertaking not to publish material obtained during the visit, nor an order authorising the searching of a prisoner's confidential legal correspondence in the prisoner's absence, was unlawful.

R v Secretary of State for the Home Department, ex parte Simms and another; R v Secretary of State for the Home Department, ex parte Main; Court of Appeal (Lord Justice Kennedy, Lord Justice Judge and Lord Justice Chadwick) 5 December 1997

The Court of Appeal allowed the Home Secretary's appeal against the decision to grant applications for judicial review by Ian Simms and Michael Alan Mark O'Brien, who were convicted prisoners, of the decision of the Home Secretary that they might only receive visits from journalists if the journalists signed an undertaking that any material obtained during a visit would not be used for professional purposes, and dismissed the appeal of Ronald Main, also a convicted prisoner, against the refusal of his application for judicial review of the decision of the governor of Whitemoor Prison to authorise prison staff to search his confidential legal correspondence in his absence (Law Report, 23 May 1997).

By paragraph 37 of Prison Service Standing Order number 5, section A, made pursuant to rule 33(1) of the Prison Rules 1964 (as amended), visits to inmates by journalists and authors were not, in general, allowed. A journalist or author who wished to visit an inmate in the capacity of friend or relative might only do so if he or she gave a written undertaking not to use any material obtained at the interview.

The order from the governor of Whitemoor Prison setting out the revised arrangements for cell searching was Governor's Order 36/1995 of 21 June 1995, paragraph 6 of which provided that during cell searches in a prisoner's absence, correspondence, particularly that issued under Rule 37A of the Prison Rules, was to be searched but not read. Rule 37A provided that correspondence between a prisoner and his legal adviser might be opened, stopped or read in certain circumstances, but might only be read if the prisoner had the opportunity to be present.

Timothy Owen and Philippa Kaufmann (Bindman & Partners) for Simms; Timothy Owen and Philippa Kaufmann (Atter McKenzie & Co) for O'Brien; Timothy Owen (Atter McKenzie & Co) for Main; Ken- neth Parker QC and Steven Kovats (Treasury Solicitor) for the Home Secretary.

Lord Justice Kennedy said that it had been submitted that the right which was in issue in the case of both Simms and O'Brien was the right of a prisoner to freedom of expression as set out in Article 10 of the European Convention on Human Rights, and that that right included a right to communicate with the media through a journalist.

A convicted prisoner had no right to communicate orally with the media through a journalist. The loss of that "right", if it could properly be so described, was part and parcel of a sentence of imprisonment. A prisoner was confined, and could no longer speak to those outside prison or receive visits from anyone other than his lawyer and his relatives and friends. If one of his friends happened to be a journalist, the prison service was entitled to require an undertaking in accordance with section A, paragraph 37 of Standing Order 5. That requirement was neither ultra vires nor irrational.

In Main's case it had been submitted that the protection afforded by Rule 37A of the Prison Rules ought to extend to correspondence stored in a prison cell, otherwise there would be an unwarranted interference with legal professional privilege. Whilst it was true that inspection of such correspondence constituted an impairment of that privilege, it was essential to maintain security in closed prisons, and to that end section 47(1) of the Prison Act 1952 permitted rules requiring that cells and everything therein should periodically be thoroughly searched.

The Governor's Order was no more than the minimum interference with prisoners' rights which was necessary to maintain security.

- Kate O'Hanlon, Barrister

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