R (Daly) v Secretary of State

Facts

A prison policy of the Home Office required prisoners to be absent while their cells were searched, and allowed prison officers to examine legal correspondence in the cell in the absence of the prisoner, subject to checks that it was not a cover for contraband. Daly, a prisoner, complained that the examination of correspondence which was covered by legal professional privilege, in his absence, was an unjustified interference with his rights.

History

The claim for judicial review was dismissed in the Administrative Court, and the Court of Appeal dismissed the appeal, holding the policy lawful. The prisoner appealed to the House of Lords.

Issue

Whether the policy of requiring the absence of prisoners from searches of their cells, including the examination of privileged legal correspondence, was lawful at common law or under Article 8 of the European Convention on Human Rights, and the intensity of review where fundamental rights are involved.

Held

Appeal allowed and the policy declared unlawful insofar as it required the absence of the prisoner when privileged legal correspondence was examined. The policy went further than was necessary to achieve the legitimate aim of maintaining security in prisons.

Ratio

• A prisoner retains the right to confidentiality of correspondence with his lawyer, which is a basic right at common law, and a policy that interferes with it is lawful only if it is shown to be necessary and no more than is necessary to meet a pressing need such as prison security.
• Where fundamental rights are engaged the court applies a proportionality analysis, asking whether the objective is sufficiently important, the measure rationally connected to it and the interference no more than necessary, and this is more demanding than the traditional test of irrationality.

The judgments

Key reasoning

• The right to legal professional privilege has long been recognised, and the policy interfered with it by allowing searching officers to read correspondence in the absence of the prisoner, which undermined the confidence that the privilege is intended to protect.
• The security objective could be achieved by less intrusive means, such as allowing the prisoner to be present when privileged material was examined, so that the interference was greater than required.
• The decision was reached at common law, independently of the Human Rights Act 1998, and the Convention analysis led to the same result, so that the rights recognised at common law and under the Convention were treated as coinciding in this case.

Obiter

• Lord Steyn stated that proportionality under the Convention may require the court to do more than the traditional Wednesbury review and that the practical differences between the two approaches should be recognised.

Where it fits in the module

In the Constitution course the case is used to explore the common law protection of fundamental rights, the principle of legality and the relationship between the common law and the Human Rights Act 1998. It shows the House using the common law as an independent source of rights protection and developing proportionality as an approach to review.

Criticisms

• The relationship between common law proportionality and the Convention is left unclear, since the House said both led to the same result but did not say whether common law proportionality is a general ground of review.
• The move towards a more intense review involves the courts in questions of weight and policy, which raises a concern about the separation of powers and the limits of judicial competence.
• The speeches of Lord Steyn and Lord Cooke take different views on whether Wednesbury should be abandoned, which makes the legal position on the ground of irrationality uncertain.