R. (on the application of Daly) v Secretary of State for the Home Department: The Case of the Prisoner's Letters

R. (on the application of Daly) v Secretary of State for the Home Department
[2001] H.R.L.R. 49

House of Lords

23 May 2001

Brief Summary:

In May 1995 the Secretary of State for the Home Department introduced a new policy governing the searching of cells occupied by convicted and remand prisoners in closed prisons in England and Wales. The appellant, a long term prisoner, brought an application for judicial review of the policy arguing that, among other things, it violated his right to privacy under Article 8 of the European Convention on Human Rights.  The appellant limited his appeal to one aspect of the policy: the requirement that a prisoner may not be present when prison officers examine his legally privileged correspondence.

The Facts:

Following a prison break on September 9, 1994, an inquiry was set up, which led to an official report to Parliament. The report of the inquiry recommended, among other things, that cells and property should be searched at frequent but irregular intervals. Following a strip search, each prisoner was to be excluded from his cell during the search, to avoid intimidation. The inquiry team gave no consideration at any stage to legal professional privilege or confidentiality.

The following policy was introduced in Security Manuals as an instruction to prison governors in order to give effect to the inquiry team's recommendations: during a cell search staff must examine legal correspondence thoroughly in the absence of the prisoner. The policy also stated that the staff must examine the correspondence only so far as necessary to ensure that it is bona fide correspondence between the prisoner and a legal adviser and does not conceal anything else.

Human Rights Argument:

The appellant argued that a blanket policy of requiring the absence of prisoners when their legally privileged correspondence is examined infringes, to an unnecessary and impermissible extent, a basic right recognised and under Article 8 of the European Convention of Human Rights.  The appellant did not claim that privileged legal correspondence is immune from all examination, only that such examination should ordinarily take place in the presence of the prisoner whose correspondence it is.

The Holding:

The Law Lords noted prior European Court of Human Rights case law that emphasized the importance of correspondence between a prisoner and his or her lawyer.  The European Court previously held that the "reading of a prisoner's mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature." While holding that common law required a finding for the appellant in this case, the Law Lords (Lord Bingham in particular) also found that the policy interfered with the appellant's exercise of his right to privacy under Article 8.1 to an extent much greater than necessity required.


Villain?
It is unclear what crime the appellant committed to be sent to prison - the case only notes that he is a "long term prisoner."  Due to that lack of evidence and the fact that he is only trying to protect his legal correspondence (not overturn his conviction or something else that might arguably make him more dangerous to the public), I will say he is not a villain.