Full case report

R (Nilsen) v Governor of HMP Full Sutton & Another (CA)

Reference [2004] EWCA Civ 1540; [2005] 1 WLR 1028; [2005] EMLR 241
Court Court of Appeal

Judge Lord Phillips MR, Kennedy LJ, Gage LJ

Date of Judgment 17 Nov 2004


Summary

Prisoner writing about his crimes – prisoners’ rights – Prison Act 1952 – freedom of expression – Article 10 ECHR


Facts

The applicant (‘N’) was an infamous convicted murderer, serving six life terms in prison and subject to a whole life tariff. N had written and wished to publish an autobiography which contained details of the murders he had committed. N gave his only copy of the manuscript to his solicitor with a view to publication. N wished to have the manuscript back to do further work on it. The Home Secretary decided it should not be returned to him, invoking Prison Standing Order 5 para. 34 which prohibits a prisoner from including details of his crimes in correspondence intended for publication. N’s prison governor refused to permit the manuscript to be returned to N. N applied for judicial review of these decisions. Maurice Kay J refused it. N appealed.


Issue

Whether para. 34 was lawful and the application of it in this case was lawful and proportionate, having regard to N’s Article 10 rights.


Held

Appeal dismissed. Para 34 was clear and readily capable of application so as to satisfy the test of being ‘prescribed in law’. ECHR jurisprudence did not establish that it was unlawful or disproportionate for imprisonment to carry with it some restrictions on freedom of expression, even restrictions which affected a prisoner’s ability to communicate with the world outside prison. Para 34 was consistent with Article 10 ECHR. The decisions under challenge were lawful.


Comment

The Court’s decision was strongly influenced by the consideration of possible public outrage if it became known that the prison service had permitted N to publish his book; arguably too strongly. Furthermore, the issue was not one of ‘permitting’ N to do something at all but of whether the authorities could do anything to prevent N publishing. The case also sits unhappily with the decision of the HL in Simms [2000] 2 AC 115. Although the CA decided otherwise, surely a rule which inflexibly prevents prisoners from publishing material about their crimes is a blanket restriction on freedom of expression of the type deprecated in Simms? And what of s.12 HRA 1998 and the balancing exercise approved in <A
href=”http://www.5rb.com/casereports/detail_redirect.asp?case=295″ target=_parent>Re S? What of N’s Article 8 right to tell his story: <A
href=”http://www.5rb.com/casereports/detail_redirect.asp?case=31″ target=_parent>Re Roddy?


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Links

Nilsen fails in autobiography bid - BBC
Nilsen's new book appeal fails - This is London