Instructions authorising prison staff to search, but not read, privileged legal correspondence during cell searches conducted in a prisoner's absence were not ultra vires.
The applicant, a category A prisoner at Whitemoor Prison, sought to quash by way of judicial review instructions issued by the governor of the prison authorising staff to search his confidential legal correspondence in his absence, and sought a declaration that any searching of his legal correspondence might only be done in accordance with rule 37A of the Prison Rules 1964.
Rule 37A limited the circumstances in which correspondence between a prisoner and his legal adviser might be opened, read or stopped, and provided particularly that the prisoner should be given the opportunity to be present when such correspondence was opened, and to be informed if it was to be read or stopped.
Tim Owen (Atter McKenzie & Co, Evesham) for the applicant; Clare Montgomery QC (Treasury Solicitor) for the respondent.
Lord Justice Pill said that the Woodcock Inquiry into the escape of six prisoners from the special security unit at Whitemoor Prison had expressed concern about the quantity of goods in the possession of prisoners and the procedures followed when cells were searched. Recommendations included searches of cells in the absence of prisoners, to avoid intimidation of staff.
By Governor's Order 36/1995 of 21 June 1995 a "step-by-step guide for conducting a search of a prisoner's cell" was issued. Rule 3 provided that the prisoner should not, under any circumstances, be allowed to remain in the cell during the search, and rule 6 provided that correspondence, particularly that issued under Prison Rule 37A, was to be searched but not read.
The law recognised the importance of the free flow of information between a prisoner and his solicitor about contemplated legal proceedings: see Campbell v United Kingdom  EHRR 137, and R v Secretary of State for the Home Department, ex p Leech  QB 198.
It was submitted for the applicant that Order 36/1995 conflicted with Prison Rule 37A and was therefore ultra vires. Alternatively, it was submitted that a cell search in the prisoner's absence, which included a search of his legally privileged correspondence, infringed a fundamental right which had been recognised by the courts.
However, Rule 37A was not concerned with cell searches. It might throw light on what procedure was appropriate during the search of the cell, but was not determinative of what was lawful in that context.
The respondent relied upon the need to make effective searches of cells in the interests of security which would necessarily include some examination of documents. The applicant did not fundamentally oppose that need, but submitted that the presence of the prisoner during a search of the documents was the decisive consideration.
On the material before the court, his Lordship did not consider that it was ultra vires the Prison Rules to make provision for searching cells in the absence of prisoners. Appropriate arrangements must, however, be in place to protect the free and frank exchange of information between a prisoner and his legal advisers about contemplated legal proceedings.
His Lordship did not accept that the only way to give effect to legal professional privilege was the presence of the prisoner during a cell search, or that it necessarily provided complete protection.
Order 36/1995 was neither ultra vires nor in the circumstances irrational. Whilst resisting the temptation to suggest precisely how instructions should be worded and enforced, it appeared to his Lordship, in the light of the material before the court, that there might be scope for further consideration of ways in which the prisoner's legal professional privilege could most sensibly be protected and spelt out, consistent with security requirements.
The application would be refused.
Kate O'Hanlon, Barrister