Secretary of state for the Home Department, ex parte Daly [2001] 3 All ER 433 (HL)

Judicial review – human rights – proportionality – blanket policy

This was a complaint by a prisoner that a policy, laid down by the Secretary of State in the Security Manual, of routinely excluding prisoners whilst searching their cells, which search included confidential correspondence between a prisoner and his legal adviser, was unlawful. The applicant submitted that s47(1) Prison Act 1952, which empowered the secretary of state to make rules for the regulation of prisons and for the discipline and control of prisoners, did not authorise the laying down and implementation of such a blanket policy, and that this policy contravened his article 8 European Convention right to respect for private life and correspondence.

Upholding the complaint, the Court held that under the Convention there were twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need and the question whether the interference was really proportionate to the legitimate aim being pursued. The differences in approach between the traditional grounds of review and the proportionality approach could therefore sometimes yield different results. It was therefore important that cases involving Convention rights were analysed correctly. That did not mean that there had been a shift to merits review.

The Secretary of State’s policy was unlawful and void in so far as it provided that prisoners always had to be absent when privileged legal correspondence, held by them in their cells, was examined by prison officers. Although any prisoner who attempted to intimidate or disrupt a search of his cell, or whose past conduct showed that he was likely to do so, could properly be excluded even while his privileged correspondence was examined, no justification had been shown for routinely excluding all prisoners, whether intimidatory or disruptive or not, while that part of the search was conducted. The infringement of the prisoners’ rights to maintain the confidentiality of their privileged legal correspondence was greater than had been shown to be necessary to maintain security, order and discipline in prisons and to prevent crime.

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