The Law for Prisoners - Essay Example

On 31 May 1995, the Home Secretary introduced a new policy ("the policy") governing the searching of cells occupied by convicted and remand prisoners in closed prisons in England and Wales.

The said discussion is about the implementation of a new law for prisoners, regarding searching of their cells, especially reading of legal documents by the prison staff in the prisoners’ absence. These were applicable to both convicted and remand prisoners in closed prisons in England and Wales. The policy was expressed in the Security Manual as an instruction to prison governors in these terms:

17.69         Staff must accompany all searches of the living quarters of prisoners.

17.70         Staff must not allow any prisoner to be present during a search for living accommodation.

• Staff to inform prisoners about objects or containers removed from living accommodation for searching.
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During a cell search staff must examine legal correspondence thoroughly in the absence of the prisoner. Staff must examine the correspondence only so far as necessary to ensure that it is actually correspondence between the prisoner and a legal adviser and does not conceal anything else.

Staff may normally read legal correspondence only if the Governor suspects that it could harm prison security, or the safety of others, or are otherwise of a criminal nature. In this case, the prisoner involved shall be given the opportunity to be present and informed that their correspondence is to be read.

17.74 When entering cells at other times, staff must take care not to read legal correspondence belonging to prisoners unless the Governor has decided that there is reasonable cause for it.

Mr. Daly, a long-term convict has objected to the checking of prisoners’ legal correspondence in their absence. He submits that section 47(1) of the Prison Act 1952, which empowers the Secretary of State to make rules for the regulation of prisons and for the discipline and control of prisoners, does not authorize the laying down and implementation of such a policy. “The requirement that a prisoner may not be present when his legally privileged correspondence is examined by prison officers,” is the clause to which he has objected strongly. He feels this is not only against the European Convention for the Protection of Human Rights and Fundamental Freedoms but also a violation of common law for human rights.

The House of Lords, consisting of Lord Bingham of Cornhill, Lord Steyn, Lord Cooke of Thorndon, Lord Hutton, and  Lord Scott of Foscote examined the appeal made by a prisoner Daly.

On 9 September 1994, six category A prisoners, (who were as classified as presenting an exceptional risk) escaped from the Special Security Unit at HMP Whitemoor. This happened because, over a period of time, prisoners and staff had become familiar with each other and the security checks had become less vigilant.

 The Home Department argued that 

• "in spite of the deprivation of his general liberty, a prisoner still has rights related to the nature and conduct of his imprisonment . . . and can  take the option of courts unless some statute decrees otherwise."

( R v Board of Visitors of Hull Prison, Ex p St Germain [1979] QB 425, 455)

• Underr English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication . . ."

(Raymond v Honey [1983] 1 AC 1)

In its report, the inquiry team made a number of recommendations. One of these was that cells and properties 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. However, legal professional privilege or confidentiality was not discussed.

The order refrains a person from enjoying his basic rights, namely: 

• the right of access to a court;
• the right of access to legal advice;
• and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege.

The House of Lords also affirmed that "under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication . . ."

But the court accepted that section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offenses against the criminal law, and safeguarding national security. Rules could properly be made to permit the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it was in truth bona fide correspondence and to permit the stopping of letters that failed such scrutiny.

After extensive examining of  similar cases and their judgments, Lord  Bingham of Cornhill, the main spokesperson concluded: “I would accordingly declare paragraphs 17.69 to 17.74 of the Security Manual to be unlawful and void in so far as they provide that prisoners must always be absent when privileged legal correspondence held by them in their cells is examined by prison officers.”

Lord Steyn agreed with Lord Cornhill’s points but said that the context of the appeal must be kept in mind while dealing with rights.

Lord  Cook of Thorndon allowed the appeal and said  “The truth is, I think, that some rights are inherent and fundamental to democratic civilized society. Conventions, constitutions, bills of rights, and the like respond by recognizing rather than creating them.”

LORD SCOTT OF FOSCOTE too was in agreement with the others, and the appeal was accepted.

Main point:  It was agreed that the law( searching and scrutinizing legal correspondence of prisoners) would apply to only some prisoners who were known to be hard-core criminals and a threat to prison security and not blindly applicable to each and every prisoner.