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

(back to preceding text)

      The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects the prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present cases is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil.

(b) Miscarriages of justice identified by investigative journalism

      My Lords, the members of the Court of Appeal were under the impression, and acted on the basis, that it was not necessary for a prisoner to have an oral interview with a journalist since he can correspond with a journalist, and in that way advance his argument for the thorough investigation and possible eventual reopening of his case. As a result of the appeal to the House there is now available material which the Court of Appeal had no opportunity to consider. First, Mr. Woffinden, the journalist in the Simms case, has provided details of some sixty cases over the last ten years where journalists played a substantial role in identifying miscarriages of justice which led to the quashing of the convictions. In the absence of contrary information I regard this document as relevant material tending to establish in a general way the value of investigative journalism in exposing miscarriages of justice. Secondly, and more importantly, an affidavit by Gareth Peirce, an experienced and distinguished practitioner, was placed before the House. Gareth Peirce has acted in more than twenty references to the Court of Appeal in which convictions were eventually quashed. She advised on the setting up of the Criminal Cases Review Commission and subsequently conducted training exercises for the new Commissioners and caseworkers. She was asked to discuss the importance of the role of the press in undoing wrongful convictions and did so. Despite the length of the quotation it is necessary to set out in full the core passages in her affidavit. She listed following factors as "important and universal":

     "a) There is no legal aid for investigations. (On the rare occasions that the Green Form scheme has allowed for extensions, these amount to little more than several hours work by a solicitor.)   b) I am informed by the Criminal Cases Review Commission that more than 90% of applicants are not represented by solicitors.   c) The criteria for referring cases to the Court of Appeal are interpreted as requiring new evidence or new and important considerations of substance.   d) Any commitment to attempting to undo a wrongful conviction is a substantial one; as a solicitor, I am aware that each such commitment will involve me in enormous personal expenditure of time and money, as well as anxiety and responsibility above even the norm in defending cases. No one would contemplate such a commitment unless they had the clearest possible view at the outset of the appropriateness of their efforts. Such a view can only be properly arrived at by meeting the individuals concerned and discussing their predicament with them.   e) There is no difference in the approach of members of the Press to that of solicitors; the commitment of an author to writing a book about a case, of a journalist to writing an insightful article, or a television company to the making of a programme involves a major deployment of resources, budgets and time. Each task demands that those making such a decision believe that their choice is an appropriate one. Such a decision is almost impossible if the individual cannot be seen; where it remains impossible, that individual's case is the less likely to be taken up by that section of the Press that might have become interested in the abstract.   f) Although the Criminal Cases Review Commission was expected to be able to conduct investigations into cases far more pro-actively than the Home Office had been able, it finds itself seriously under resourced and underfunded. The report of its Chairman this year to the House of Commons Home Affairs Committee spoke of incoming cases being required to wait at least two years before they can be assigned to a case worker. The cases with the best opportunity remain those which have arrived at the Commission fully researched and investigated with new evidence compellingly presented. Resources available to the Press, in particular (but not exclusively) the large budgets available to Television programmes, are clearly the most significant chance of discovering new evidence, particularly where expensive expert research requires commissioning. As important, however, is the potential interest of smaller, local newspapers and journals, which can provoke interest in the relevant area and prompt fresh evidence."

Gareth Peirce then described in compelling detail how the above factors have been relevant in five particular cases "as well as in many others of which these are examples" Counsel for the Home Secretary was given leave to challenge this affidavit if it was thought proper to do so. There has been no challenge. I have no hesitation in accepting that the general picture sketched by Gareth Peirce, as well as her discussion of particular cases, is correct. On any view this is powerful evidence.

      Two important inferences can and should be drawn. First, until the Home Secretary imposed a blanket ban on oral interviews between prisoners and journalists in or about 1995, such interviews had taken place from time to time and had served to identify and undo a substantial number of miscarriages of justice. There is no evidence that any of these interviews had resulted in any adverse impact on prison discipline. Secondly, the evidence establishes clearly that without oral interviews it is now virtually impossible under the Home Secretary's blanket ban for a journalist to take up the case of a prisoner who alleges a miscarriage of justice. In the process a means of correcting errors in the functioning of the criminal justice system has been lost.

(c) The counter-arguments on behalf of the Home Secretary

      For my part I am reasonably confident that once it is accepted that oral interviews with prisoners serve a useful purpose in exposing potential miscarriages of justice the Home Secretary would not wish his present policy to be maintained. But, if I am mistaken in that supposition, my view is that investigative journalism, based on oral interviews with prisoners, fulfil an important corrective role, with wider implications than the undoing of particular miscarriages of justice. Nevertheless, I must directly address the counter arguments advance by the Home Secretary.

      Latham J. was unimpressed with the reasons advanced in opposition to the prisoners, limited claim in the first affidavit of Audrey Wickington. In my judgment the judge was right. The two new affidavits make a case that any oral interviews between prisoners and journalist will tend to disrupt discipline and order in prisons. In my view these affidavits do not take sufficient account of the limited nature of the prisoners' claims, viz to have interviews for the purpose of obtaining a thorough investigation of their cases as a first step to possibly gaining access through the Criminal Cases Review Commission to the Court of Appeal (Criminal Division.) The affidavits do not refute the case that until 1995 such interviews enabled a substantial number of miscarriages to be undone. Moreover, they do not establish that interviews confined to such limited purposes caused disruption to prison life. In any event, the affidavits do not establish a case of pressing need which might prevail over the prisoners, attempt to gain access to justice: see decision of the Court of Appeal in Reg. v. Secretary of State for the Home Department, Ex parte Leech [1994] Q.B. 198, the correctness of which was expressly accepted by counsel for the Home Secretary.

      Counsel for the Home Secretary relied on the decision of the United States Supreme Court in Pell v. Procunier 94 S.C. 2800 (1974). The case involved a ban by prison authorities of face to face interviews between journalists and inmates. The background was a relatively small number of inmates who as a result of press attention became virtual "public figures" within prison society and gained a disproportionate notoriety and influence among their fellow inmates. The evidence showed that the interviews caused severe disciplinary problems. By a majority of 5:4 the Supreme Court held the ban to be constitutional. The majority enunciated an approach of a "measure of judicial deference owed to corrections officials." This approach was followed in Turner v. Safley 107 S. Ct. 2254 (1987) where the Supreme Court upheld restrictions on correspondence between inmates. In Pell v. Procunier the Supreme Court was faced with a very particular and intolerable situation in the Californian prison service where there had been virtually unlimited access by journalists to inmates. Nobody suggests anything of the kind in the present case. While the inmates in Pell v. Procunier no doubt wished to air their general grievances, there is nothing in the report to indicate that the prisoners wanted interviews with journalists for the specific purpose of obtaining access to an appeal process to challenge their convictions. And, in any event, the approach of judicial deference to the views of prison authorities enunciated in Pell v. Procunier does not accord with the approach under English law. It is at variance with the principle that only a pressing social need can defeat freedom of expression as explained in Derbyshire (at 550H-551A), Leech (at 212 E-F), and Silver v. United Kingdom (1980) 3 E.H.R.R. 475, at 514-515 (para. 372-375) (the Commission) and (1983) 5 E.H.R.R. 347, at 377 (para. 99(e)) (the Court). It is also inconsistent with the principle that the more substantial the interference with fundamental rights the more the court will require by way of justification before it can be satisfied that the interference is reasonable in a public law sense: Reg. v. Ministry of Defence, Ex parte Smith [1996] Q.B. 517, at 554 E-F. In my view Pell v. Procunier does not assist. (d) Conclusion

      On the assumption that paragraphs 37 and 37(A) should be construed as the Home Secretary contends, I have no doubt that these provisions are exorbitant in width insofar as they would undermine the fundamental rights invoked by the prisoners in the present proceedings and are therefore ultra vires.


      It is now necessary to examine the correctness of the interpretation of paragraphs 37 and 37(A), involving a blanket ban on interviews, as advanced by the Home Secretary. Literally construed there is force in the extensive construction put forward. But one cannot lose sight that there is at stake a fundamental or basic right, namely the right of a prisoner to seek through oral interviews to persuade a journalist to investigate the safety of the prisoner's conviction and to publicise his findings in an effort to gain access to justice for the prisoner. In these circumstances even in the absence of an ambiguity there comes into play a presumption of general application operating as a constitutional principle as Sir Rupert Cross explained in successive editions of his classic work: Statutory Interpretation, 3rd ed. (1995) 165-166. This is called "the principle of legality": Halsbury's Laws of England, 4th ed. reissue, vol. 8(2), (1996), p. 13, para. 6. Ample illustrations of the application of this principle are given in the speech of Lord Browne-Wilkinson, and in my speech, in Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] A.C. 539, at 573G-575D and 587C-590A. Applying this principle I would hold that paragraphs 37 and 37(A) leave untouched the fundamental and basic rights asserted by the prisoners in the present case.

      The only relevant issue in the present proceedings is whether paragraphs 37 and 37(A) are ultra vires because they are in conflict with the fundamental and basic rights claimed by the prisoners. The principle of legality justifies the conclusion that paragraphs 37 and 37(A) have not been demonstrated to be ultra vires in the cases under consideration.


      My Lords, my judgment does not involve tearing up the rule book governing prisons. On the contrary I have taken full account of the essential public interest in maintaining order and discipline in prisons. But, I am satisfied that consistently with order and discipline in prisons it is administratively workable to allow prisoners to be interviewed for the narrow purposes here at stake notably if a proper foundation is laid in correspondence for the requested interview or interviews. One has to recognise that oral interviews with journalists are not in the same category as visits by relatives and friends and require more careful control and regulation. That is achievable. This view is supported by the favourable judgment of past experience. Moreover, in reality an oral interview is simply a necessary and practical extension of the right of a prisoner to correspond to journalists about his conviction: compare Silver v. United Kingdom 3 E.H.R.R. 475 (the Commission) and 5 E.H.R.R. 347 (the Court); and Livingstone and Owen, Prison Law, 2nd ed., para. 7.30-7.33 (pp. 228-232).

      The criminal justice system has been shown to be fallible. Yet the effect of the judgment of the Court of Appeal is to outlaw the safety valve of effective investigative journalism. In my judgment the conclusions and reasoning of the Court of Appeal were wrong.

      Declarations should be granted in both cases to the effect that the Home Secretary's current policy is unlawful, and that the Governors' administrative decisions pursuant to that policy were also unlawful. I would allow both appeals.


My Lords,

      I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with it and for the reasons which he gives I would allow the appeals and make the orders which he proposes. I add only a few words of my own about the importance of the principle of legality in a constitution which, like ours, acknowledges the sovereignty of Parliament.

      Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

      The Human Rights Act 1998 will make three changes to this scheme of things. First, the principles of fundamental human rights which exist at common law will be supplemented by a specific text, namely the European Convention. But much of the Convention reflects the common law: see Derbyshire County Council v. Times Newspapers Ltd. [1993] A.C. 534, 551. That is why the United Kingdom government felt able in 1950 to accede to the Convention without domestic legislative change. So the adoption of the text as part of domestic law is unlikely to involve radical change in our notions of fundamental human rights. Secondly, the principle of legality will be expressly enacted as a rule of construction in section 3 and will gain further support from the obligation of the Minister in charge of a Bill to make a statement of compatibility under section 19. Thirdly, in those unusual cases in which the legislative infringement of fundamental human rights is so clearly expressed as not to yield to the principle of legality, the courts will be able to draw this to the attention of Parliament by making a declaration of incompatibility. It will then be for the sovereign Parliament to decide whether or not to remove the incompatibility.

      What this case decides is that the principle of legality applies to subordinate legislation as much as to acts of Parliament. Prison regulations expressed in general language are also presumed to be subject to fundamental human rights. The presumption enables them to be valid. But, it also means that properly construed, they do not authorise a blanket restriction which would curtail not merely the prisoner's right of free expression, but its use in a way which could provide him with access to justice.


My Lords,

      The issue raised by this appeal has been stated by the parties to be -

     "whether the provisions of paragraphs 37 and 37A [of Standing Order 5A] are ultra vires s. 47 of the Prison Act 1952."

      The Appellants' Printed Case asks for a declaration that those paragraphs are ultra vires. The argument has however ranged over wider issues and questions also the lawfulness of the present policy of the Home Department apparently wholly to exclude professional journalists from visiting prisoners unless the journalist is prepared to sign an undertaking "not to use any material obtained during the visit for professional purposes, in particular, for publication by the journalist or anyone else." I use the word "apparently" because it does not always seem to have been the policy of the Department. For instance, it seems that Mr Woffinden, a well known journalist specialising in investigating possible cases of the miscarriage of justice was allowed to visit Mr Simms at various prisons for a number of years; Mr Woffinden subsequently published an article about his case in "The Independent." His visits were only stopped after a specific representation to the Home Office by an MP. Nor is it fully clear what are the parameters of the policy. The Prison Rules and the Standing Orders certainly do not necessitate the conclusion that a total ban is being imposed; in part the evidence leads to the same conclusion. This illustrates that it is the policy of the Department rather than the Standing Orders themselves that are under attack.

      The ultra vires question arises under the enabling legislation. This is first s. 47(1) of the Prison Act 1952:

     "The Secretary of State may make rules for the regulation and management of prisons . . . and for the classification, treatment, employment, discipline and control of persons required to be detained therein."

Under this power, the Secretary of State has made the Prison Rules 1964 (and has later amended those Rules). There are specific Rules which deal with visits by Members of Parliament and Prison Visitors and others to which it is not necessary to refer. Rules 33 to 37A deal with Letters and Visits. Rule 33 provides:

     "(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons, impose restrictions either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons.

     (2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State or as a privilege under rule 4 of these Rules.

     (3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length.

     (4) Every visit to a prisoner shall take place within the sight of an officer, unless the Secretary of State otherwise directs.

     (5) Except as provided by these Rules, every visit to a prisoner shall take place within the hearing of an officer, unless the Secretary of State otherwise directs.

     (6) The Secretary of State may give directions, generally or in relation to any visit or class of visits, concerning the days and times when prisoners may be visited."

      Rule 34 deals with "Personal Letters and Visits." It makes separate provision for convicted and unconvicted prisoners. Paragraph (8) of the Rule provides:

     "A prisoner shall not be entitled under this Rule to receive a visit from . . . any person other than a relative or a friend, except with the leave of the Secretary of State."

      Rules 35 to 37A deal with special situations, including access to legal advisers and courts. The Respondent therefore has to justify the Standing Order under these empowering provisions including any implicit limitations to which they are subject. An alternative view is that the Standing Order itself must be read as being subject to such implicit restrictions and the decisions taken under the Standing Order must comply with those restrictions, otherwise they will be unlawful. The whole of this part of the Rules is subject to Rule 2(1) which provides:

     "Order and discipline shall be maintained with firmness, but with no more restriction than is required for safe custody and well ordered community life."

      The 1964 Rules have now been replaced by the Prison Rules 1999 which are in the presently relevant respects similar to the amended 1964 Rules. The question of the vires of Standing Order 5A paragraphs 37 and 37A, has to be considered in relation to the powers given by the 1952 Act and the 1964 Rules. On their face these enabling powers are sufficiently wide.

The Facts:

      Turning to the factual context in which the question of journalists' visits to prisoners has been raised, it is convenient to take the Simms case as illustrative. Mr Simms was convicted of murder on 14 March 1989 after a trial before a judge and jury. Although the body of the murdered woman was never found (and has still not been found), the evidence against Mr Simms was very strong. As is often the case, the unavailability of evidence from the alleged victim means that there are unanswered questions in reconstructing what precisely did happen, but likewise the inferences arising from the prosecution evidence were never rebutted by the defence--or, at least, such must have been the view of the jury. Mr Simms has throughout protested his total innocence of any involvement in the woman's death or disappearance. His appeal against his conviction failed but he was trying to find new evidence, including forensic evidence, which would enable him to make out a case that his conviction was unsafe. In 1990, he approached Mr Woffinden. This set in train a regular succession of written communications between them and visits by Mr Woffinden to Mr Simms in the prisons where from time to time Mr Simms was held.

      A friendship grew up between them and it seems that Mr Simms to some extent became dependent upon Mr Woffinden's interest and visits. Matters came to a head because the mother of the deceased, who understandably had been conducting a campaign of her own to try and locate her daughter's body, objected to the press coverage given to Mr Simms. In the second half of 1994 the matter was taken up with the Home Department by her MP and Mr Woffinden was requested to sign the standard form of undertaking which I have already quoted. He declined and no further visits by him to Mr Simms have taken place. In January 1995, "The Independent" published Mr Woffinden's article about Mr Simms's case. It recognised the strength of the case against Mr Simms at the trial but suggested that the unanswered questions should cast doubt upon his conviction.

      The application for judicial review of the continuing requirement that Mr Simms could only receive visits from Mr Woffinden if he signed the undertaking was issued some 18 months later in June 1996. Affidavits in support were sworn by both Mr Simms and Mr Woffinden. These spoke of their friendship and the effect that the discontinuance of the visits was having upon Mr Simms's morale. Mr Simms confirmed that he had not had the benefit of any further legal aid after the failure of his appeal and that he was dependent upon the help and resources of the media in carrying forward his inquiries to the stage where they would justify the Home Department (now the Criminal Cases Review Commission) referring his case back to the Court of Appeal. Mr Woffinden spoke of how in his view his dual roles of friend and professional journalist had become inseparable and of the wide-ranging nature of the conversations between them.

     "There seemed, also, an ethical dimension to this. On our visits, Ian would not just discuss his own case, but those of others with whom he was imprisoned. In this way, I first learned of a number of astonishing miscarriages. (He became a very reliable assessor of other cases, able to distinguish between bona fide victims of a fallible judicial system; and those whose assertions of injustice were not to be trusted).

     Sometimes, he would describe how inmates were assaulted, or otherwise deprived of their legal rights, by prison officers. Was I to be like some Catholic priest, knowing of such matters yet being unable to communicate them to anyone outside the prison?" (Affidavit dated 31 January 1996, paras. 23 and 24)

He says that "accordingly, I felt unable to sign an undertaking not to publicise anything that passed between us."

      The affidavits sworn in support of Mr Simms's application exhibited correspondence exchanged with the Prison Service. The first letter was that of Mr Woffinden dated 8 February 1995 (that is to say after the publication of the article in The Independent). In it he referred to some difficulties which he had recently encountered "in trying to visit a friend of mine, Ian Simms" His letter included--

     "I would further like to stress two other points: that although I have written an article about his case, I have been visiting him for some time, and therefore think of him primarily as a friend. (There are, at present, no plans to make a television programme about the case.)

     Also, in making this request, I am seeking no special considerations whatsoever. I am merely asking to be allowed to pay him normal, routine visits in line with the standard visiting arrangements that prevail throughout the prison system."

      The response he got was that, if he wished to visit Mr Simms "as a friend", then this would be permitted once a written undertaking had been provided. In May Mr Woffinden, referring to paragraph 37, wrote to the governor requesting him to authorise a visit to "my friend" on humanitarian grounds to enable him to cope better with his imprisonment. The governor responded saying: "I have no problem in allowing you to visit Ian Simms, as a friend, provided you sign the disclaimer" (as per paragraph 37). There the matter rested save for a formal request by Mr Simms's solicitor in a letter before action which received the same reply as before.

      This narrative has a number of relevant features. There is no evidence that Mr Woffinden had abused his position. But there is evidence in the quotations which I have made from paragraphs 23 and 24 of his affidavit that there was scope for such abuse. Mr Woffinden was obtaining in a wholly unsupervised fashion, and without any authorisation, information as a journalist which did not relate to Mr Simms but to other inmates. Further, the imparting of such material to a professional journalist in such a way goes beyond the rights which are asserted on behalf of the Appellants in this case or would be permitted in correspondence even with a legal adviser. (Ex parte Leech [1994] Q.B. 198.) It appears from the evidence that the cessation of the visits did not inhibit or prevent the publication of Mr Simms's case in the media nor, having written the article, did Mr Woffinden need further visits to Mr Simms for the purpose of furthering his case (or obtaining a reference back). As regards the needs of friendship, which was the sole basis on which Mr Woffinden was seeking to visit Mr Simms in 1995 and thereafter, it appears that Mr Woffinden had such strong personal objections to signing the undertaking that he preferred, and chose, to discontinue his visits to his friend rather than sign any such document. It is a salient feature of this narrative that at no time was any application made by Mr Simms or any other person under paragraph 37A nor on the basis that an interview by a professional journalist was required for the purpose of furthering Mr Simm's interest in getting his conviction set aside or for any other purpose.

      The affidavit in support of Mr O'Brien's application does not provide much detail. It seems that there were some 8 visits from the journalist concerned, Miss Voisey, again without incident before the Department intervened. What was the ambit of the conversations beyond Mr O'Brien trying with only limited success to interest Miss Voisey in his case, is not stated. There is no affidavit from Miss Voisey. No relationship of friendship is put forward nor is any need made out for further interviews between them for the purpose of elucidating Mr O'Brien's case. She was making routine visits to him on the basis that she was a friend. It was whilst attending to make another such routine visit that she was asked to sign the standard undertaking. She refused and appears to have taken no further interest in visiting him. When the matter was later taken up in correspondence by Mr O'Brien's solicitor with the governor, the solicitor did not provide any basis for saying that Mr O'Brien needed to have yet another interview by a journalist nor why any outstanding matter could not satisfactorily be pursued in correspondence. It seems however from what Mr O'Brien has said in his affidavit that he was alleging that his correspondence was being interfered with. That would be a separate and independent complaint and would be covered by such cases as Leech. It has however not been pursued in these judicial review proceedings nor has it been substantiated. The governor replied to the solicitor:

     "There is no intention of depriving inmate O'Brien of the opportunity of trying to establish his innocence, and Karen Voisey is more than welcome to assist him in doing such, with the proviso that when she visits him, the requirements of Standing Order 5 apply."

The solicitors did not take the matter further before issuing proceedings. No application was made for a visit under paragraph 37A. No attempt was made to make out a case which would show why a further face to face interview was needed. His solicitors chose instead simply to challenge the vires of the Prison Rules and Standing Orders. Mr O'Brien's case has now been referred back to the Court of Appeal by the Review Commission and he has been released on Bail.