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

The Claimant was a serving prisoner who had begun writing his autobiography and had given to his solicitor a manuscript draft. It included details of murders he had committed. The solicitor later sought to return the manuscript to the Claimant, via the Defendant. The Defendant refused to pass it on to the Claimant, on the grounds that it was intended for publication in breach of para 34(9)(c), Standing Order 5B to the Prison Rules 1999, SI 1999/728. The Claimant sought judicial review.

(1) Whether the relevant part of the Prison Rules was incompatable with Art 10, ECHR; (2) Whether the relevant part of the Prison Rules applied to autobiographical writings; (3) Whether the application of the relevant part of the Prison Rules in this case was disproportionate or irrational.

(1) The regulatory powers of a prison governor could lawfully extend outside the prison and could justify interference with a prisoner’s freedom of expression in pursuit of the legitimate aims of preventing crime and disorder, protecting morals and protecting the rights and freedoms of others. The relevant part of the Prison Rules was a proportionate restriction of the Claimant’s freedom of expression in pursuit of legitimate aims. (2) Autobiographical writings had no special status. The relevant part of the Prison Rules therefore applied to them. (3) The decision was entirely rational and proportionate.

The ECHR has repeatedly said, in the context of Article 10, that the right includes the right to express views that will shock and offend. Freedom of expression means nothing if it constrained to the freedom to express only those views or thoughts which are accepted by and do not offend the public. Maurice Kay J made no reference to this important principle, yet went on to hold: “in my judgment, the Secretary
of State is entitled to have regard to the likely effect of publication on members of the public, including survivors and the families of victims of Mr. Nilsen’s serial offences. I am unimpressed by the suggestion that anyone can choose not to read whatever may be published.” That Nilsen’s book would offend people is inevitable, simply by dint of his writing it about his horrific crimes whilst serving a prison sentence. However, that fact cannot legitimately be taken into account when assessing the justification offered for restricting Nilsen’s undoubted Article 10 rights.