LAW REPORT v 24 October 1995 : Closed visits for high-risk prisoners lawful

Regina v Secretary of State for the Home Department, ex parte O'Dhuibhir and another; Queen's Bench Divisional Court (Lord Justice Rose and Mr Justice Wright); 11 October 1995

In the circumstances prevailing in 1995 the Home Secretary has power to impose a closed visits regime, whereby physical contact between a high- risk prisoner and his visitors is impossible.

The Divisional Court dismissed two applications for judicial review of the "closed conditions" regime imposed on exceptionally high-risk category A prisoners.

The applicants, category A prisoners, were serving sentences of 30 years and 18 years for conspiracy to cause explosions and for attempted murder respectively. The first applicant escaped from Whitemoor prison in 1994 but was recaptured. Reports on prison security in 1995 stated that contraband, including drugs, money and weapons, was smuggled into prisons and the only safe system was a closed visits regime for category A prisoners, currently 13.

The Home Secretary instructed prison governors that all category A prisoners would be subject to closed visit arrangements in relation to legal and family visits by use of an interposed physical barrier. Open visits would be allowed in exceptional circumstances.

On entry to the prison visitors, including legal representatives, passed through a metal detector, had their possessions X-rayed and were subjected to a rub-down search. On entering the category A unit, those procedures were repeated. There were cameras in the rooms where visits took place. Prisoners were strip-searched before and after visits. A fixed glass screen which was now conceded as unacceptable made communication difficult.

The applicants applied for judicial review to challenge the "closed conditions".

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

Lord Justice Rose said that the test was whether there was a self-evident and pressing need for a power to order closed visits. The rule-making power conferred by section 47(1) of the Prison Act 1952 to regulate and manage prisons and control persons detained self- evidently and necessarily conferred the power to regulate the circumstances of visits to prisoners so as to minimise and if possible prevent the introduction of contraband. A sentence of imprisonment was passed on the basis that, subject to parole, the prisoner would be detained in custody. Activity which was capable of leading to unlawful escape was the antithesis of continued custody.

Visits were a potential source of contraband which could aid disturbance and escape. The regulation and management of prisons and the control of prisoners plainly required control of the circumstances of visits to prevent the passage of contraband. There was no scope for any sustainable argument that such regulation of the way in which visits were conducted was outwith the powers conferred by section 47(1).

What facilities were reasonable must depend on all the circumstances, including the category and escape risk, the effectiveness of scrutiny procedures, and the prisoner's unassailable right to communicate confidentially with his legal advisers.

Provided that the restrictions imposed on legal visits were necessary in the interests of security and provided the prisoner's unassailable right was preserved, it could not be said that the facilities for closed legal visits were other than reasonable.

No different conclusion was possible in relation to closed family visits. The loss of physical contact was of considerable significance and the effect on prisoner and his child was regrettable. But provided humanitarian considerations were taken into account, as the evidence showed they were, they should not outweigh the security consideration any more than the disastrous impact of a long sentence of imprisonment on a prisoner's family could outweigh society's need for protection.

The conclusion that the closed-visit regime was within the Home Secretary's power and that reasonable facilities were accorded had been determined by the particular circumstances of the case. Prison security was constantly reviewed. This case related to the circumstances in June 1995: changed circumstances might require a changed regime.

Mr Justice Wright agreed.

Ying Hui Tan, Barrister