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House of Lords
Session 1998-99
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Judgments -- 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)


  Lord Browne-Wilkinson   Lord Steyn   Lord Hoffmann
  Lord Hobhouse of Wood-borough   Lord Millett










ON 8 JULY 1999


My Lords,

      I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons which he gives I would allow both the appeals and make the declarations which he proposes.


My Lords,

      In the last fifteen years a number of miscarriages of justice have been exposed. I do not have in mind cases where in the ordinary process of appeal a wrong has been corrected. The term is apt where a conviction was at first upheld on appeal but subsequently, after the defendant had perhaps served years in prison, the case was re-opened and the conviction found to be unsafe. The risk of such miscarriages is ever present. On 18 May 1999 Mr. David Calvert-Smith Q.C., the Director of Public Prosecutions, found it necessary to issue a specific warning to prosecutors about the need to guard against such miscarriages taking place. He added that he "was concerned, and have been concerned for some time, that at present there is a significant number of cases in which the prosecution are not so complying (with the duty of disclosure.)" It has been demonstrated on the hearing of the present appeals that in recent years a substantial number of miscarriages of justice have only been identified and corrected as a result of painstaking investigation by journalists. And those investigations have included oral interviews with the prisoners in prison.

      The Home Secretary contends that prisoners have no right to have oral interviews with journalists in aid of an attempt to gain access to the Court of Appeal (Criminal Division.) The policy of the Home Secretary is that such interviews would tend to undermine the discipline and control which are unquestionably essential conditions in a prison environment. On behalf of the appellants the consequentialist argument is that if the policy of the Home Secretary is upheld it will be virtually impossible for a journalist to take on a case which he believes to merit investigation.

The case in a nutshell

      Two prisoners serving life sentences for murder had their separate applications for leave to appeal against conviction refused by the Court of Appeal (Criminal Division.) The men continued to protest their innocence. In order to obtain the reopening of their cases they wished to have oral interviews with journalists who had taken an interest in their cases. Relying on the policy of the Home Secretary the Governors of the prisons were only prepared to allow the oral interviews to take place if the journalists signed written undertakings not to publish any part of the interviews. The journalists refused to sign the undertakings. The prisoners sought judicial review of the decisions denying them the right to have oral interviews. They rely on the right to free speech not in a general way but restricted to a very specific context: they argue that only if they are allowed to have oral interviews in prison with the journalists will they be able to have the safety of their convictions further investigated and to put forward a case in the media for the reconsideration of their convictions. They seek to enlist the investigative services of journalists as a way to gaining access to justice by way of the reference of their cases to the Court of Appeal (Criminal Division). Since their appeals were dismissed neither prisoner has had access to legal services. Latham J. upheld their argument and held the policy of the Home Secretary to be unlawful. The Court of Appeal allowed an appeal by the Home Secretary and reversed the decision of Latham J. The Court of Appeal in effect ruled that a prisoner has no right to an oral interview (as opposed to correspondence) with a journalist who was willing to investigate his case and, if appropriate, to take up his case through the media: see Regina v. Secretary of State for the Home Secretary, Ex parte Simms [1999] Q.B. 349.

The restrictions on the rights of prisoners

      A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus the prisoner's liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that "a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication": see Raymond v. Honey [1983] A.C. 1 at 10H; Reg. v. Secretary of State for the Home Department, Ex parte Leech [1994] Q.B. 198 at 209D. Rightly, Judge L.J. observed in the Court of Appeal in the present case that "the starting point is to assume that a civil right is preserved unless it has been expressly removed or its loss is an inevitable consequence of lawful detention in custody": [1999] Q.B. 349 at 367H.

      Section 47(l) of the Prison Act 1952 enables the Home Secretary to make rules for, amongst other things, "the regulation and management of prisons . . . and for the . . . treatment, employment, discipline, and control of persons required to be detained therein." The power to make such rules is exercisable by statutory instrument: section 52(1) of the Act of 1952. Pursuant to section 47(l) there are, amongst others, rules which enable a prisoner to correspond with his legal advisers, and to have interviews with legal advisers in prison (paragraph 34 of section A of the Prison Service Standing Order 5.) The rules also make provision for a prisoner to correspond with a journalist: paragraph 34 of section B. But the provisions regulating an oral interview by a journalist (in section A) are in the following more restrictive terms:

     "Visits by journalists or writers

     "37. Visits to inmates by journalists or authors in their professional capacity should in general not be allowed and the governor has authority to refuse them without reference to headquarters. If a journalist or author who is a friend or relative wishes to visit an inmate in this capacity and not for professional purposes, the governor should inform the intending visitor that before the visit can take place he or she will be required to give a written undertaking that any material obtained at the interview will not be used for professional purposes and in particular for publication by the intending visitor or anyone else.

     "37A. Where, exceptionally, a journalist or author is permitted to visit an inmate in his or her professional capacity, or is allowed general access to the establishment, he or she will be required to give a written undertaking that no inmate will be interviewed except with the express permission in each case of the governor and the inmate concerned, that interviews will be conducted in accordance with such other conditions as the governor considers necessary, and that any material obtained at the interview will not be used for professional purposes except as permitted by the governor. No inmate should be permitted to accept any payment or gratuity in return for an interview or for a radio or television appearance."

Paragraph 37(A) requires the express permission in each case of the governor and the inmate concerned. In the cases before the House the two prisoners wished to be interviewed in order to appeal to public opinion through the media. At stake are the rights of prisoners to be interviewed by journalists of the prisoners' choice. The case of Mr. Simms

      On 14 March 1989 Mr. Simms was convicted of murder and sentenced to life imprisonment. On 8 October 1990 the Court of Appeal (Criminal Division) refused Mr. Simms' renewed application for leave to appeal. On 10 July 1991 the Home Secretary, having considered representations from Mr. Simms, declined to refer his case to the Court of Appeal (Criminal Division). In 1990 Mr. Simms wrote to Bob Woffinden, a journalist who specialises in the investigation of possible miscarriages of justice. They started to communicate by letters and visits. In late 1994 the Home Secretary became aware that Mr. Woffinden was visiting Mr. Simms. This led to the Governor of H.M.P. Full Sutton informing Mr. Woffinden that he could no longer visit Mr. Simms unless he signed an undertaking in accordance with paragraph 37 not to publish anything that passed between him and Mr. Simms during the visit. On 28 January 1995 Mr. Woffinden wrote an article about Mr. Simms' case which was published in the Independent Magazine. His theme was that no body was ever found and that the supposed victim may simply have disappeared. On 23 May 1995 the Governor of H.M.P. Full Sutton wrote to Mr. Woffinden and confirmed that he would have to sign the undertaking before a further visit could take place. On 28 June 1996 Mr. Simms commenced judicial review proceedings. Since then Mr. Simms has been moved to H.M.P. Long Lartin. The policy of the Home Secretary about oral interviews between prisoners and journalists has been maintained.

The case of Mr. O'Brien

      On 20 July 1988 Mr. O'Brien was convicted of murder and robbery. On 16 March 1990 the Court of Appeal (Criminal Division) refused Mr. O'Brien's renewed application for leave to appeal. The Home Secretary refused his request to refer his case to the Court of Appeal (Criminal Division). In early 1995 Mr. O'Brien first received visits at H.M.P. Long Lartin from Karen Voisey, a journalist working for BBC Wales. She started investigating Mr. O'Brien's convictions. She interviewed O'Brien on eight occasions in 1995. Mr. O'Brien wanted Ms. Voisey to produce a television programme about his case. But by 19 December 1995, when she sought once more to visit Mr. O'Brien, H.M.Prison Service had become aware that Ms. Voisey was a journalist, and so she was required to sign an undertaking in the same terms as that required in the case of Mr. Woffinden. She too refused to sign the undertaking and was turned away. She has not visited him since. Mr. O'Brien and his solicitors challenged the decision. On 26 April 1996 the Governor confirmed that the original decision stands. On the 2 July 1996 Mr. O'Brien commenced judicial review proceedings.

      On 19 October 1998 the Criminal Cases Review Commission referred Mr. O'Brien's case to the Court of Appeal. On 21 December 1998 Mr. O'Brien was granted bail pending appeal. At present Mr. O'Brien is not affected by the policy which is the subject of this appeal. If this appeal is unsuccessful, and he is returned to prison, he will once again be subject to its terms.

The proceedings before Latham J.

      When the matter came before Latham J. there was before him an affidavit sworn by Audrey Wickington, a Grade 6 Officer in the Prison Service. She said:

     "The arrangements covering representatives of the media visiting prisoners and using the information obtained for professional purposes, such as in each of these cases where the two applicants sought to publicise their claims to be innocent of the offences of which they had been convicted, are designed to prevent gratuitous details of a prisoner's offence or his attitude towards the offence and/or the victim entering the public domain. If such safeguards are not maintained, the scope for abuse would be enormous, and consequently there would be serious risk of distress to victims and their families and general public outrage at the sight of prisoners and representatives of the media collaborating to publish details of any aspect of a prisoner's case."

Latham J. described this statement as the high point of the Home Secretary's case. He held that it did not justify "the blanket prohibition on making use of material obtained in a visit."

The proceeding of the Court of Appeal

      Given that Latham J. was unimpressed with the cogency of the grounds contained in the affidavit served on behalf of the Home Secretary, two further affidavits were placed before the Court of Appeal. Robert Thomas, the Chief Press Officer for the H.M. Prison Service, said:

     "If it were to become common practice to allow journalists access to individual prisoners it would not be possible to offer the same sort of protection currently given to prisoners in the form of professional media advice. A prisoner unhappy at the outcome of an interview has few avenues left open to him as the options for complaint are strictly limited by the prisoner's circumstances. Such resentment within a prison can bring staff additional problems."

Audrey Wickington expanded her earlier evidence as follows:

     "Even if the subject of a conversation were restricted to serious representations about conviction or sentence or serious comment about crime, the process of justice or the penal system, the Prison Service could not prevent a journalist using the information provided by the prisoner to write an article which did not represent the prisoner's viewpoint or did not consider at all the rightness of the conviction, dwelling instead on the prisoners' attitude towards his offences and victims. Misrepresentations and distortions of this sort would, in the judgment of the Prison Service, be likely to have a more dramatic impact on members of the public reading the article, particularly the victims of the offence, when the journalists had based his account on a live interview with the prisoner."

Referring to paragraph 37(A) she stated that a governor might exceptionally consider a visit by a journalist to a prisoner, such as in "the case of an illiterate prisoner."

      Kennedy L.J. came to the following conclusions in the cases of Mr. Simms and Mr. O'Brien (at 362A-D):

     "In my judgment a convicted prisoner has no right to communicate orally with the media through a journalist. The loss of that "right," if it can properly be so described, is part and parcel a sentence of imprisonment. . . . I would therefore reject the vires argument which found favour with the judge and allow the appeal. Insofar as Mr. Owen sought to contend that the requirement of a written undertaking was and is irrational, disproportionate or otherwise unjustifiable, I would reject that submission, . . ."

In a separate judgment Judge L.J. approached the problem in less absolute terms. He observed (at 118G-H):

     "If he is visiting as a professional journalist, or intending to use the material obtained at interview in a professional capacity, it is difficult to accept that the limitation on the entitlement of the journalist to publish the contents of his communications with the prisoner infringes the prisoner's right of free expression, at any rate in any way which significantly increases the inevitable interference with that right which follows incarceration. As the prisoner's ability to communicate with journalists both orally and in writing is preserved, what in reality is at stake is the relationship between the journalist and those responsible for the secure administration of the prison. The potential for increased problems with security and discipline, staff, other inmates, and after conviction, with victims or their families, all underline the need for control of such visits to be vested in and exercised by the governor. This is what the regulatory framework is intended to achieve and in the circumstances I have concluded that the restriction currently under consideration is not ultra vires."

Judge L.J. also held that the decision to require an undertaking was not irrational. Chadwick L.J. agreed with both judgments.

The principal issues and arguments

      Counsel for the Home Secretary said that the current policy is enshrined in paragraphs 37 and 37(A). Counsel argued that properly construed those paragraphs authorise the Home Secretary to impose a complete ban on journalists interviewing prisoners for any purpose. And he argued that the Home Secretary may ban any interviews even if the sole purpose of the prisoner is to gain access to the investigative resources of the media in order to publicise an alleged injustice and to achieve a reference back of his case to the Court of Appeal (Criminal Division.) Counsel for the Home Secretary emphasised that, as he described it, this "blanket ban" is what the Home Secretary is defending. And the Home Secretary contends that to allow any interviews would undermine proper control and discipline in prisons. But counsel observed that in wholly exceptional circumstances the Home Secretary in his unfettered discretion may allow an interview, e.g. in the case of an illiterate prisoner who is unable to correspond with a journalist.

      At the outset of the appeals counsel for the appellants made clear that the only right which he claims for the prisoners in these proceedings is the right to an oral interview with a journalist confined to the question whether he has been wrongly convicted. And the purpose of the interviews would be to enlist the investigative resources of the media in righting a wrong. He emphasised that the Home Secretary's powers to refer a case back to the Court of Appeal (Criminal Division) was an integral part of the just functioning of the overall process of criminal justice: Reg. v. Secretary of State for the Home Department, Ex parte Hickey [1995] 1 W.L.R. 734, at 743E, per Simon Brown L.J. He further argued that the new powers under section 13 of the Criminal Appeal Act 1995 of the Criminal Cases Review Commission to refer a case back to the Court of Appeal (Criminal Division) is also an integral part of a fallible criminal justice system. Counsel for the appellants emphasised that he is invoking the prisoners' rights of free speech in order to gain credible access to the Criminal Cases Review Commission. Unsurprisingly, that usually requires new evidence. And in practice the only way in which a thorough new investigation can be mounted is by investigative journalism backed by the necessary resources. In outline this was the argument on behalf of the appellants.

      The Agreed Statement of Facts and Issues states that the issue is whether the provisions of paragraphs 37 and 37(A) are ultra vires. Counsel for the Home Secretary argued that paragraphs 37 and 37(A) authorise the policy of the Home Secretary and he submitted that this policy is lawful. The printed Case of the Appellants seeks a declaration that paragraphs 37 and 37(A) are ultra vires. In much of his oral argument counsel for the appellants assumed that paragraphs 37 and 37(A) do indeed authorise the already described policy of the Home Secretary. On that basis he submitted that those provisions are ultra vires. In both cases, however, the Divisional Court Form 86A sought the quashing of the administrative decisions affecting the prisoners. And counsel for the appellants said that, irrespective of the vires of paragraphs 37 and 37(A), the appellants, case is that the policy of the Home Secretary (and the administrative decisions of the Governors pursuant to that policy) are unlawful.

      In this somewhat untidy procedural situation I will consider the issues in the following order: (1) I will first assume that the Home Secretary's interpretation of paragraphs 37 and 37(A) is correct. On this assumption I will consider the lawfulness of his policy. (2) If it is unlawful, I will need to deal with the question whether the Home Secretary's interpretation of paragraphs 37 and 37(A) is correct. The question arises whether those provisions are ultra vires. (3) If paragraphs 37 and 37A are not ultra vires, I will need to consider what other relief is appropriate.


(a) Freedom of expression

      The starting point is the right of freedom of expression. In a democracy it is the primary right: without it an effective rule of law is not possible. Nevertheless, freedom of expression is not an absolute right. Sometimes it must yield to other cogent social interests. Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) is in the following terms:

     "I. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. . . . 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

In Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 A.C. 109, at 283-284, Lord Goff of Chieveley expressed the opinion that in the field of freedom of speech there was in principle no difference between English law on the subject and article 10 of the Convention. In Derbyshire County Council v. Times Newspapers Ltd. [1993] A.C. 534 Lord Keith of Kinkel, speaking for a unanimous House, observed about article 10 (at 550H- 551A):

      "As regards the words 'necessary in a democratic society' in connection with the restrictions on the right to freedom of expression which may properly be prescribed by law, the jurisprudence of the European Court of Human Rights has established that 'necessary' requires the existence of a pressing social need, and that the restrictions should be no more than is proportionate to the legitimate aim pursued."

In that context Lord Keith observed that he reached his conclusion on the issue before the House without any need to rely on the Convention. But he expressed agreement with the observation of Lord Goff of Chieveley in the Guardian Newspapers case and added "that I find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the Treaty in this particular field": at 551G. I would respectfully follow the guidance of Lord Goff of Chieveley and Lord Keith of Kinkel.

      Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Mr. Justice Holmes (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market.": Abraham v. United States 250 U.S. 616, at 630 (1919), per Holmes J. (dissent). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnett, Constitutional Law, 3rd ed., (1996), 1078-1086. It is this last interest which is engaged in the present case. The prisoners argue that in their cases the criminal justice system has failed, and that they have been wrongly convicted. They seek with the assistance of journalists, who have the resources to do the necessary investigations, to make public the wrongs which they allegedly suffered.