Law Report: Closed visits for high-risk prisoners lawful

LAW REPORT: 6 March 1997

Regina v Secretary of State for the Home Department, ex parte O'Dhuibhir; Court of Appeal (Lord Justice Kennedy, Lord Justice Peter Gibson, Mr Justice Buckley) 27 February 1997

The imposition of stringent restrictions on visits to high escape-risk prisoners held in special secure units, with a view to eliminating the risk of weapons and other items which might assist an escape being smuggled in, was lawful.

The Court of Appeal dismissed an appeal against the decision of the Queen's Bench Divisional Court (Law Report, 24 October 1995) refusing applications by Liam O'Dhuibhir and Michael O'Brien for judicial review of a decision of the Home Secretary, in June 1995, to impose a "closed conditions" regime on visits to all those category A prisoners classed as "exceptional escape risk".

The decision to impose the new regime had been introduced on the recommendation of reports commissioned in the wake of an escape by six exceptional escape- risk category A prisoners (including the applicant O'Dhuibhir) from the special secure unit at Whitemoor Prison in September 1994. The escapers had in their possession a variety of equipment including a rope ladder and two pistols and ammunition. It was concluded that such items must have been smuggled into prison by visitors.

Under the new regime, visitors passed through a metal detector, had their possessions X-rayed and were subjected to a rub-down search. There were cameras in the rooms where visits took place. Prisoners were strip-searched before and after visits. A fixed glass screen was placed between prisoners and their visitors.

Legal representatives visiting prisoners to take instruction or give advice were allowed to pass papers to prisoners on the other side of the glass screen without them being read by prison staff and to talk to them by telephone. For family visits, the closed visits regime was to be the norm but in exceptional circumstances open visits would be permitted.

Edward Fitzgerald QC and Tim Owen (B.M. Birnberg & Co) for the applicants; Kenneth Parker QC and Pushpinder Saini (Treasury Solicitor) for the Home Secretary.

Lord Justice Kennedy said the applicants contended that the policy was unlawful because although section 47(1) of the Prison Act 1952 entitled the Home Secretary to make rules for the regulation and management of prisons and for the classification, treatment, discipline and control of persons detained therein, that did not entitle him to interfere with the lawyer-client relationship by more than the minimum amount necessary in the interests of prison security.

But his Lordship did not accept that closed visits impeded the free flow of communications between a solicitor and his client. The glass screen at worst did no more than make communication more difficult.

In R v Home Secretary, ex p Leech [1994] QB 198, Steyn LJ proposed the test of "whether there is a self-evident and pressing need" for the restriction imposed (in that case the reading and censoring of letters between prisoners and their lawyers under rule 33(3) of the Prison Rules 1964, which was held to be ultra vires).

In the present case the "self-evident and pressing need" test had no real role to play, because rule 33(1) of the 1964 Rules, under which the Secretary of State might "with a view to securing discipline and good order or the prevention of crime" impose "restrictions . . . upon the communications to be permitted between a prisoner and other persons", was obviously intra vires section 47(1). Once that was recognised, all that remained was to decide whether the instruction to governors, imposing the closed visits regime, was unreasonable.

It was obvious that the situation had been carefully addressed. In the light of the security problems, it could not be said that in June 1995 or at any time since those entrusted with the unenviable task of deciding whether to implement in relation to exceptional escape risk category A prisoners the closed visits policy were not entitled to decide as they did.

Paul Magrath, Barrister