|Regina v. Secretary of State for the Home Department Ex Parte Simms (A.P.) Secretary of State for the Home Department Ex Parte O'Brien (Consolidated Appeals) continued|
In neither case therefore is any further journalistic need alleged or demonstrated for the purpose of prosecuting the legitimate interests of the prisoner in establishing his innocence. Whatever interviews were necessary for that purpose had already been conducted by the journalist with the prisoner. The point was well taken on behalf of the Appellants that a face to face interview with the man concerned will probably be an essential part of the professional journalist's assessment whether to support the prisoner's case. A reputable journalist is not going to take up the case of a convicted prisoner unless he is persuaded that the man's belief in his innocence (whether mistaken or not) is genuine. In this regard your Lordships were assisted by the affidavits of both Mr Woffinden and Miss Peirce a well known solicitor practising in this field. But, I repeat, the time had passed when this consideration was relevant to these two Appellants. No application was made for a visit under paragraph 37A.
Before Latham J.:
When these cases were before Latham J. in the Divisional Court, he expressly upheld the need to regulate access by professional journalists acting as such to prisons and prisoners. To quote:
Latham J. then discussed the various methods of controlling oral communications open to the prison authorities and concluded that they could be satisfactorily adapted to interviews:
This is the judgment and reasoning upon which the Appellants rely before your Lordships. The judge's conclusion is not that the Secretary of State is not entitled to regulate the access of the media to penal establishments. He affirms that such regulation and control is a necessary part of running such an establishment and that it is a necessary corollary that the prisoners' rights to communicate with, and the receipt of visits from, professional journalists must likewise be controlled and regulated. It is a feature of the reasoning of Latham J. that he drew an analogy with the need to control the right of communication with lawyers recognised in the Leech case. In that context the right to communicate was recognised to be open to abuse; even more so would be an uncontrolled right to communicate with the media. This was also recognised in Reg. v. Secretary of State for the Home Department, Ex Parte Bamber (unreported), 15 February 1996, C.A., where it was held that the right of a prisoner to provide a recorded message for a radio station could properly be curtailed.
Another strand in the reasoning of Latham J. (derived from other cases) is the assessment of the alternative means of communication open to the prisoner and the other means of preventing abuse open to the Prison Authorities short of a blanket ban. This is essentially a question of fact taking into account what is practical and what would be adequate, both from the point of view of the prisoner and that of the Authorities. Thus it has to be recognised that, on occasions, written or telephone conversations may not suffice for a prisoner to convince a journalist of his genuine belief in his innocence. Similarly, the need specially to supervise visits by professional journalists must mean that such visits cannot be as easily granted or be as frequent as visits by friends and relatives; and, as Latham J. said, the grant of such a visit has to be justified. In the case of Reg. v. Secretary of State for the Home Department, Ex parte O'Dhuibir (unreported), 27 February 1997, C.A., the insistence on the use of glass screens and no physical contact was in exceptional circumstances upheld even for visits by friends and relatives.
The United States and Strasbourg:
Two cases from other jurisdictions can be referred to in this context. In the United States of America, the right of free speech is an entrenched constitutional right. There has accordingly been a view, respectably supported, that it is unconstitutional to restrict in any way the rights of prisoners to communicate with the press or the rights of the press to have access to penal establishments and prisoners. However the Supreme Court has, by majorities, repeatedly upheld the power of prison authorities to restrict or even, on occasions, exclude access by the media. An extreme example of this was Pell v. Procunier 417 U.S. 817 where the Supreme Court upheld a complete ban on such visits even to remand prisoners. The principle was accepted that such a prohibition could be justified as a part of a prison regime. In reaching its decision the Supreme Court considered the factors which should weigh with those with the responsibility for running such establishments and the alternative means of communication available. There was in that case evidence that uncontrolled media access and intrusion had led to a serious disturbance. There was also evidence that the legitimate interests of those concerned could be adequately met by other means of communication. The argument that the authorities must prove that there was literally no alternative to a complete ban was rejected; it is not proper in such a matter for the court to substitute its own judgment for those with the responsibility and expertise in the matter unless it can be shown that they have disregarded the relevant constitutional rights. (See also Block v. Rutherford 468 U.S. 576, Turner v. Safley 482 U.S. 78 and Procunier v. Martinez 416 U.S. 396.)
The European Court of Human Rights has considered prisoners' rights on a number of occasions. Articles 5, 8, 10 and 11 each contain relevant provisions in this context. In the case Silver v. The United Kingdom 3 E.H.R.R. 475 (the Commission), 5 E.H.R.R. 347 (the Court), the subject matter was the censorship of prisoners' correspondence. The censorship of prisoners' correspondence was ancillary to prison rules restricting the contents of correspondence. The Commission, therefore, and the Court had to consider what restraints upon the content of correspondence were permissible. The main review is contained in the Opinion of the Commission. At p. 509, para. 344, and following the Commission dealt with the prohibition of letters containing material intended for publication. It recognised that uncontrolled communications could have adverse consequences for prison order and discipline and that it was therefore necessary to carry out a balancing exercise but it concluded that a blanket prohibition was not necessary. By contrast, the Commission took the view that communications making representations about the prisoner's trial, conviction or sentence whether to the Home Secretary or others should in principle not be prevented. (pp. 512-513, paras. 360-363) Although there was a statutory right to have recourse to the Home Secretary and it was he who had the statutory power and responsibility to refer cases back to the Court of Appeal, it was not justifiable to confine such communications to him. As regards letters attempting to stimulate public agitation or petition, the Commission again recognised the needs of good order and discipline and the fact that public agitation rather than recourse to legal remedies might undermine the rule of law, but it also accepted, at p. 515, para. 373, that it was conceivable that -
Its opinion was therefore that a blanket prohibition upon such communications was an over broad restriction. In that case the Commission considered that the applicant's
When the case went to the Court, the United Kingdom accepted the substance of these conclusions of the Commission. (pp. 377-378, para. 99) Further, the Court upheld as justified (on security grounds) the authorities' interception of a letter which referred to other category A prisoners.
The approach adopted by the E.C.H.R. in this and other cases (in particular Campbell v. United Kingdom (1992) 15 E.H.R.R. 137) was followed by the Court of Appeal in Ex parte Leech  Q.B. 198, where the question raised was the routine censorship of communications to legal advisers. Such communications are of course entitled to a higher order of protection than communications to the press but, even so, the Court of Appeal recognised that some measure of control was still necessary to ensure that such communications were bona fide. The then existing Standing Orders were too widely expressed--"extravagantly wide"--and went beyond what was necessary or justifiable. At pp. 217-218, the Court, having cited from the Canadian case Solosky v. The Queen (1979) 105 D.L.R. (3d) 745, adopted a formula which, whilst acknowledging the right and duty of the prison authorities to supervise and prevent the abuse of such channels of communication, set parameters which should ensure that the censorship did not go beyond what was reasonably necessary. The Prison Rules and Standing Orders now follow this guidance.
Standing Order 5:
Communications and visits are dealt with in Standing Order 5: Section A "Visits," Section B "Correspondence." These follow a logical scheme and make separate provision for different situations. Thus in relation to visits there are paragraphs dealing separately with close relatives, other social visits, minors, legal advisers, priests and ministers, and police officers as well as for professional journalists. Standing Order 5 has the following general introduction:
Paragraphs 37 and 37A read:
These paragraphs contain nothing which is inconsistent with the law stated in the decided cases or with the judgment of Latham J. The opening words of paragraph 37 should be construed subject to Rule 2(1). They reflect no more than what has been said by Latham J. that visits to prisoners by professional journalists need to be justified. They are not in the same category as social visits by relatives and friends. The second sentence which contains the reference to the undertaking which Mr Woffinden and Miss Voisey were asked to sign only applies to professional journalists who wish to visit the prisoner not in the capacity of journalist but socially as a relative or friend. The undertaking is in my judgment a perfectly justifiable means for distinguishing the different types of visitor. It was in this context, for the purpose of visiting socially as a friend, that Mr Woffinden was requested by the governor to sign the undertaking and refused to do so. Latham J. recognises the need to establish the capacity in which the person is visiting and that special arrangements need to be made where the visit is to be as a professional journalist.
Visits by professional journalists acting as such are the subject of paragraph 37A. That paragraph leaves it to the governor to lay down the conditions which will govern the visit, including, if necessary, asking for a paragraph 37A undertaking. In view of the great variety of situations which may have to be covered it is appropriate, and desirable, that the governor be given this breadth of discretion. No question has been raised in the present cases under paragraph 37A since no request for a visit was ever made under that paragraph.
The paragraphs themselves are not objectionable nor do they raise questions of vires. It is what is done purportedly under the Prison Rules and the Standing Orders and other provisions requiring the governor's consent before someone other than a relative or friend may visit a prisoner which may do so. The Rules and Standing Orders do not impose a blanket prohibition on visits by journalists; indeed they contemplate that such visits will take place. It is the policy of the Home Department that, contrary to its own Rules and Standing Orders, would seek to impose that prohibition. It is the policy that is being called into question.
In the two cases the subject matter of these appeals, nothing objectionable has in fact been disclosed in relation to the treatment of these Appellants. The need and justification for further visits by the journalists concerned as journalists had been exhausted. No need for further professional visits was asserted, let alone demonstrated, at the time that the governor had to make the decisions which it is sought to review. The need to apply paragraph 37A did not arise. The request for further visits by Mr Woffinden to Mr Simms was socially as a friend and that had the appropriate corollary that he should sign the undertaking. The decisions of the governors concerned were the right ones having regard to the applications to which they responded. The decisions themselves disclose no illegality. To quash the decisions and require the governors to reconsider them would inevitably lead to the same decisions being made unless new facts are relied upon by the Appellants in support of their applications. But if new or additional facts are to be relied upon, the correct course for the Appellants to pursue would be to make fresh applications. I pass over the fact that for Mr O'Brien, who is on bail, the question has become academic. Indeed it was not clear to me that the Appellants were still asking for that relief.
It follows that in my judgment these applications for judicial review, as formulated, should have failed and, in so far as they attacked the vires of paragraphs 37 and 37A, should not result in declarations that those paragraphs were ultra vires. It also follows that if that was all there was to it the appeals should be dismissed.
The Department's Policy:
But it is not satisfactory to leave the matter there because the Department have in the course of these proceedings put forward and have been attempting in argument and by affidavit to justify and uphold a policy of the blanket exclusion of journalists. That was the submission of Mr Parker QC for the Respondent. Two further affidavits were sworn on behalf of the Respondent when these cases were before the Court of Appeal. That of Mr Thomas speaks of the need to make special arrangements and take special safeguards when journalists are conducting interviews with prisoners. He stresses that this is only possible because such visits are so few; he says it would not be possible if the allowance of such interviews became common practice. This is an affidavit which confirms the need for regulation and control. It does not justify a blanket ban; indeed, like the Standing Orders, it proceeds on the basis that, where justified, such visits will be permitted. The affidavit of Miss Wickington on the other hand, whilst again stressing and amplifying the differences between ordinary visits and visits by professional journalists, concludes by saying that the type of exceptional circumstances in which visits by journalists should be permitted would be where the prisoner was illiterate. Mr Parker's submission was that visits by journalists should only be allowed in the case of prisoners incapable even with assistance of communicating in writing.
In my judgment, this extreme policy is both unreasonable and disproportionate and cannot be justified as a permissible restraint upon the rights of the prisoner. (Raymond v. Honey  1 A.C. 1.) In certain situations a face to face visit by a journalist is appropriate as a necessary supplement to the other means of communication. The evidence shows that a prisoner has a legitimate interest in seeking to obtain a reference back of his case to the Court of Appeal. He does not have the benefit of legal aid for this purpose. In practical terms the reference back will normally have to be on the basis of fresh evidence not previously available. Someone has to unearth that evidence if it exists. A solicitor without funds will be most unlikely to incur the considerable cost involved in carrying out such an investigation. The same will normally apply to the prisoner's relations. In this context the media have a role to play. They have the funds and have an interest in applying them to the investigation of meritorious cases. As Miss Peirce has testified, many successful referrals have only come about because of the help of journalists. I accept, subject to the necessary qualifications, the comparison between the contribution that can be made by lawyers and journalists in this connection. Just as where a lawyer is acting for a prisoner an interview may be necessary, so with a responsible professional journalist a stage may be reached where an interview becomes necessary and other means of communication will not suffice.
Therefore one arrives at a similar situation to that discussed in Silver and Leech. The prisoner should be allowed, subject to suitable supervision and safeguards, to communicate with others in seeking assistance in obtaining the reopening of his case. This is the interest and right which the Appellants assert in the present cases. It is a proper subject matter for communication, provided it is not abused. The question therefore becomes one of what forms of communication should be permitted. Within appropriate limits, written communications are permitted as are telephone communications: this is not controversial. These are the means of communication to which the prisoner should first have recourse. If he then wants to have a face to face meeting with the journalist, he must make out a case for it. He will have to address why he needs an interview with the journalist, including explaining why other means of communication will not suffice and the proposed subject matter of the interview. Unless he can adequately show the need for the interview, he has not made out his case for being allowed a visit from a professional journalist. The existing means of communication will have sufficed to meet his entitlement to communicate. The refusal of the visit will not infringe his rights.
It is on this limited but important aspect that I part company with Judge L.J. with whose judgment I substantially agree. The argument before your Lordships and the additional affidavit and other material with which we were supplied show that it is not a sufficient response simply to say that written and telephone communications will in all cases suffice to satisfy the rights of the prisoner. There remains a category of situations where the denial of a face to face interview can amount to an unjustifiable denial of the right of the prisoner to communicate and his legitimate interest to pursue his attempts to obtain a review of his conviction or sentence. The category is exceptional. It will not be the extensive and unregulated right which those standing behind the Appellants appear to visualise. It will not without more justify series of visits by journalists. It will not give prisoners the same facility of access to professional journalists acting as such as they have to relatives or friends. Similarly the requests for such visits and their authorisation will have to take account of the practicalities. A visit by a professional journalist to a prisoner in prison is not the same as a visit by a friend or relative. Special arrangements will often be required. These will inevitably place constraints upon the granting of such visits.
The considerations which I have referred to are covered by the discretion given to the governor in the Prison Rules and the Standing Orders. I agree with Judge L.J. when he says (at p. 372):
I would also agree with the concluding words of Judge L.J. Respect must be had for those who have the responsibility of running penal establishments. If basic rights are being asserted, the relevant criterion to apply in evaluating any conduct alleged to interfere with those rights is that adopted by the Court of Appeal in Reg. v. Ministry of Defence, Ex parte Smith  Q.B. 517, 554. The court must be satisfied that the relevant decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker: the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is not unreasonable.
For these reasons I would dismiss these appeals in so far as they seek a declaration that paragraphs 37 and 37A are ultra vires. But I would allow the appeals to the extent of granting a declaration that the blanket policy of refusing visits by professional journalists contended for by the Respondent in these proceedings is unlawful. Thus far I am in full agreement with the order proposed by your Lordships. However I understand that your Lordships would go further and quash the impugned decisions of the respective governors. So be it. For the reasons which I have already given that is not the order I would make but I will not oppose the order which your Lordships propose. That question is now academic.
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Steyn and Lord Hobhouse of Woodborough. I too have concluded that the Prison Rules and Standing Orders, and in particular paragraphs 37 and 37A of the Standing Orders, are lawful and intra vires, but that they do not justify the manner in which they are being applied in practice. I can give my reasons quite shortly.
As my noble and learned friend Lord Hobhouse of Woodborough has pointed out, the first sentence of paragraph 37 is in general terms and by way of introduction to both paragraphs 37 and 37A. It should be approached as if it appeared on its own in a separate introductory paragraph. It states the general principle that professional visits by journalists and authors should not be permitted. It is an inevitable and intended consequence of a custodial sentence that the prisoner should be deprived of the right to be visited by anyone he likes when and as often as he wants. Visits by close members of the prisoner<.'>s family are severely curtailed. But a total ban on visits, even by journalists, could not be justified. For the reasons given by my noble and learned friend Lord Steyn, a refusal to allow the prisoner to be interviewed by a responsible journalist investigating a complaint that he had been wrongly convicted would strike at the administration of justice itself. The words "in general", however, leave it open to the Governor, despite the general prohibition, to permit a visit by a journalist where it would be appropriate to do so. There is nothing objectionable in requiring a proper case to be made for allowing the visit or in making it clear that this will seldom be possible. Cases calling for the intervention of an investigative journalist, though unhappily not few in number, must concern only a tiny proportion of the prison population and arise with relative infrequency.
The remainder of Article 37 deals with visits from journalists and authors who claim to visit a prisoner in a non-professional capacity as a friend or relative. There is no reason why such a visitor should be treated any differently from any other friend or relative who is not a journalist or author or be subjected to such arrangements for supervision and control as would be appropriate if he were visiting the prisoner in a professional capacity. But if the visitor asks the Governor to dispense with such arrangements on the ground that his visit is a purely social one, it is entirely reasonable that the Governor should exact an undertaking that he will not use any material obtained in the course of his visit for professional purposes.
What if the visitor refuses to give such an undertaking? In the case of Mr. Woffinden both parties treated this as the end of the matter. No undertaking, no visit. But this is not what the Standing Orders contemplate. In the absence of an undertaking, the Governor is entitled to refuse to treat the proposed visit as a social one. But he is not entitled to turn the visitor away without further consideration. He must treat him as having requested permission for a professional interview. Such a case is governed by paragraph 37A.
This paragraph requires the visitor to give an undertaking in a different form. It enables the Governor to lay down the conditions on which the interview will take place and on which material obtained in the course of the interview may be published. I do not read this as authorising the Governor to impose a requirement that the visitor should submit his work to censorship before publication. I would regard such a requirement as unlawful. In practice it would have the effect of barring the visit, for no respectable journalist or author would be prepared to submit to it. I read the paragraph as authorising the Governor to impose in advance general conditions limiting the scope of the material that the visitor is free to submit for publication. Thus he could (and almost certainly would) exact an undertaking that the journalist should publish no material which the prisoner would not have been permitted to include in correspondence with him.
Paragraph 37A envisages the situation where the Governor permits a professional visit by a journalist or author, and enables him to lay down appropriate conditions to govern the visit. This is intra vires and unobjectionable. The opening sentence of paragraph 37 has already made it clear that such a situation will be the exception and not the rule. A special case must always be made to justify the visit. The word "exceptionally" in paragraph 37A merely means that a strong case must be made. I can see nothing objectionable in this.
Miss Voisey did not claim to be a friend or relative of the prisoner. She asked permission to interview the prisoner in a professional capacity. Despite this the Governor demanded that she sign an undertaking in the same terms as that required of Mr. Woffinden. This was inappropriate. It would defeat the whole purpose of the proposed visit and amounted to a refusal of her request.
Where the visiting journalist seeks a professional interview, or refuses to give the undertaking described in paragraph 37, it is still open to the visitor to satisfy the Governor that it would be proper to grant permission for the visit. If he is satisfied that the visitor is a responsible journalist investigating a possible miscarriage of justice, that his investigations cannot reasonably be completed or taken further without a personal interview, and that he is willing to comply with appropriate arrangements for the supervision and control of the interview and the scope of the material to be submitted for publication, then permission should normally be granted.
This is not the approach which was followed in the cases under appeal. Both journalists treated the Governor's insistence on the undertaking as amounting to a refusal of the visit, and did not attempt to make out a case for allowing it. But it would have made no difference if they had. It was the policy of the Home Office to refuse all such requests by professional journalists, and the Governors did not change their minds when the basis of the requests was explained in correspondence.
Before your Lordships the Secretary of State has claimed the right to impose an indiscriminate ban on all professional visits by journalists or authors no matter how strong a case is made for a particular visit. I agree with my noble and learned friend Lord Steyn that he has no such right, that paragraph 37A of Standing Orders does not confer one, and that it would be unlawful if it did. Following the unlawful policy of the Secretary of State, the Governors peremptorily refused permission in each of the cases under appeal without considering the merits of the request or inviting representations from the journalists. I would allow the appeal and make the Order proposed by my noble and learned friend Lord Steyn.
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