Administrative Court allows judicial review to protect prisoner's privileged and confidential correspondence

Tue, 26 Oct 2021

The High Court has found that a prison acted unlawfully in opening a prisoner’s confidential mail in R (Xavier) v Governor of HMP Whitemoor and Secretary of State for Justice [2021] 10 WLUK 263.

Mrs Justice Heather Williams allowed the judicial review claim brought on behalf of an individual detained at HMP Whitemoor. The Claimant had received letters from his solicitor, his constituency MP and the Prisoner’s Advice Service, all of which had been opened by prison security. The Claimant was only present for the opening of the letters on one occasion; two were opened in his absence.

The question for the Court was whether the openings constituted unlawful breaches of Prison Rule 39 and the corresponding Confidential Access provisions, which govern the handling of privileged or confidential access letters. The Defendant relied on second-hand witness evidence and records denying the breaches, but contemporaneous documents and complaints indicated the unlawful openings.

The Court found that the Defendants breached Prison Rule 39, failed to apply the relevant policy Prison Service Instruction 49/2011, and failed to provide for the common law right of unimpeded access to justice. The Defendants had also acted unlawfully in breach of section 6 of the Human Rights Act 1998 in that the Claimant has suffered a breach of the protections of the European Convention on Human Rights 1950.

The learned Judge found that just satisfaction required damages for the violation of the Claimant’s rights.

In addition, in relation to medical letters being opened, the Judge confirmed that she was attracted to the Claimant’s argument for a wider understanding of what should be treated as medical-in-confidence than presently indicated by the policy in place; however she was not required to decide the issue in this case.  

The Claimant was represented by Philip Rule of No5 Barristers' Chambers, instructed by Julian Coningham of Coninghams Solicitors.

Philip Rule is head of the Public Law Group at No5 Chambers.

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