This article is part of the Prison law during the coronavirus pandemic series:

On 24 March 2020, prisons in England and Wales closed to visitors in order to ensure safe and secure functioning and the enforcement of social distancing during the coronavirus pandemic. Whilst the prohibition on visiting is clearly an infringement of Article 8(1) ECHR, it can be justified under Article 8(2) as being in accordance with law and necessary for the protection of public health.

In the face of the prohibition on visiting, the Government’s 24 March 2019 Guidance Corona Virus (Covid-19) and Prisons suggests a number of ways to contact a prisoner, such as:

In the context of communication regarding illness, Rule 22 of the Prison Rules 1999 (“the Prison Rules”) provides that if a prisoner “becomes seriously ill….the governor shall, if he knows his or her address, at once inform the prisoner’s spouse or next of kin, and also any person who the prisoner may reasonably have asked should be informed” .

The new prohibition will also prevent legal advisers from interviewing prisoners as per Rule 38 of the Prison Rules. Consequently, confidential correspondence with legal advisers and courts under Rule 39 of the Prison Rules will likely increase in importance and prisoners are to be provided with any necessary writing material for this purpose (Rule 39(5)). While the Governor may open such correspondence if he has ‘reasonable cause’ to believe that it contains an illicit enclosure (including any correspondence from a non-legal adviser) or that its contents endanger prison security or the safety of others or are otherwise of a criminal nature, the prisoner is to be given the opportunity to be present when such correspondence is opened (Rule 39(4)). Usually rule 39 privilege is respected, and if it is not that gives rise to grounds for judicial review or a civil claim under the Human Rights Act 1998.

Philip Rule, Head of Public Law, No5 Barristers’ Chambers Chambers

Ian Brownhill, Deputy Head of Public Law, No5 Barristers’ Chambers.

Stuart Withers, Barrister

Benjamin Harrison, Barrister

Avril Rushe, Barrister