REGINA vs. Secretary of State For The Home Department, Ex Parte Daly

Facts

On 31 May 1995 the Home Secretary introduced a new policy ("policy") governing the searching of cells occupied by convicted and remand prisoners in closed prisons in England and Wales. Mr Daly is a long term prisoner. He challenges the lawfulness of the policy. He submits that Section 47(1) of the Prison Act 1952, which empowers the Secretary of State to make rules for the regulation of prisons and for the discipline and control of prisoners, does not authorise the laying down and implementation of such a policy. But on this appeal to the House Mr Daly challenged that a prisoner may not be present when his legally privileged correspondence is examined by prison officers, infringes basic right recognised both at common law and under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Key Takeaways for Students

Legal Issue

Whether the policy is justified in limiting a fundamental right?

Holding

The policy interferes with Mr Daly's exercise of his right under Article 8.1 of the European Convention to an extent much greater than necessity requires. The incorporation of the convention by the Human Rights Act 1998, domestic courts must themselves form a judgment whether a convention right has been breached and grant an effective remedy.

The limitation of the right was necessary in a democratic society, to meet the social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results.

Final Decision Appeal Allowed