Prisons - cell searches - privileged legal correspondence - not to be searched in prisoner's absenceR v Secretary of State for the Home Department, Ex parte Daly: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Cooke of Thorndon, Lord Hutton and Lord Scott of Foscote): 23 May 2001The applicant, a serving prisoner, sought leave to move for judicial review of the policy adopted in closed prisons in England and Wales requiring officers conducting cell searches to examine in the absence of the prisoner, but not read, any legal correspondence in the cell to check that nothing had been written on it by the prisoner, or stored inside it, which was likely to endanger prison security.

The judge refused leave.

On a renewed application the Court of Appeal granted leave, with a direction that the substantive proceedings be heard by itself, but thereafter dismissed the application.

The applicant appealed.Tim Owen QC and Phillippa Kaufmann (instructed by Bhatt Murphy) for the applicant.

Ian Burnett QC and Steven Kovats (instructed by Treasury Solicitor) for the secretary of state.Held, allowing the appeal, that the policy, by giving rise to the possibility that an officer might improperly read privileged legal correspondence and to the inhibiting effect such possibility would have on the prisoner's willingness to communicate freely with his legal adviser, amounted to an infringement of the prisoner's right to legal professional privilege; that the reasons advanced for that infringement, namely the need to maintain security, order and discipline in prisons and to prevent crime, could be justification for the exclusion during examination of privileged correspondence of an individual prisoner who was attempting to intimidate or disrupt a search, or whose past conduct had shown that he was likely to do so, but not for a policy of routinely excluding all prisoners, whether intimidatory or not; that, furthermore, the policy interfered with the applicant's right to respect for his correspondence under article 8.1 of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998, to a greater extent than was necessary for the prevention of disorder and crime; and that, accordingly, the policy, in so far as it provided that prisoners must always be absent when privileged legal correspondence held by them in their cells was examined by prison officers, was void.

(WLR)