R v Secretary of State for the Home Department Ex Parte Simms

Regina v Secretary of State for the Home Department Ex Parte Simms (and O'Brien)[1999]

LE GOUIC LouaneJOLAS Soizic

Regina v Secretary of State for the Home Department Ex Parte Simms

Conclusion

Consequences and impact

House of Lords decision

Procedure

Facts

07

03

06

02

05

Clarifications

01

Framework

= House of Lords

MAGISTRATES COURT

COUNTY COURTS

FAMILY COURT

TRIBUNALS

CROWN COURT

HIGH COURT OF APPEAL

COURT OF APPEAL

SUPREME COURT

THE UK JURIDICTIONS

Consolidation= occurs when the appeals of two or more parties are united for consideration because they contain identical or similar issues

clarifications

• House of Lords = ancient supreme jurisdiction of the UK

• October 2009: creation of Supreme Court

• R = Rex (the king) or Regina (the queen)

Regina v Secretary of State for the Home Department Ex Parte Simms

The House of Lords (Supreme Court website)

Refusal by the prison

Ask for the help of journalists

Appeal denied

Undertaking = legal document certifying that anything that was being said between the prisoner and the journalist was never going to be published.

Prison service orders (PSOs) = policy and guidance for prison and probation professionals in England and Wales made by the Ministry of Justice, so by the government (secretary)

Simms and O'Brien = convicted of murder

FACTS

Regina v Secretary of State for the Home Department Ex Parte Simms

SERVICE STANDING ORDER, section 47, paragraph 37

37. “Visits to inmates by journalists or authors in their professional capacity should in general not be allowed and the governor has authority to refuse them without reference to headquarters. If a journalist or author who is a friend or relative wishes to visit an inmate in this capacity and not for professional purposes, the governor should inform the intending visitor that before the visit can take place he or she will be required to give a written undertaking that any material obtained at the interview will not be used for professional purposes and in particular for publication by the intending visitor or anyone else.” 37A. Where [...] a journalist or author is permitted to visit an inmate in his or her professional capacity, [...] he or she will be required to give a written undertaking that no inmate will be interviewed except with the express permission [...] of the governor and the inmate concerned, that interviews will be conducted in accordance with such other conditions as the governor considers necessary, and that any material obtained at the interview will not be used for professional purposes except as permitted by the governor…"

FACTS

Regina v Secretary of State for the Home Department Ex Parte Simms

Home Secretary = minister in charge of domestic policy; represents the interests of the government and the prison system

Decision? The judges challenged the undertaking (violation of the freedom of speech)

Defendant? Secretary of state for the home department / Home Secretary

Criminal division of the court of appeal:

First instance:

• Dissident opinion

• Prisoner's can't be interviewed by journalists

Can the Secretary of State, and prison governors prohibit prisoner’s access to journalists investigating?

Claimants? Mr Simms and Mr O'Brien

Procedure

Regina v Secretary of State for the Home Department Ex Parte Simms

Blanket ban= total prohibition

The three main arguments of the Court:The help of journalists against miscarriages of justice The article 10 of the European Convention on Human Rights (1953) Parliamentary sovereignty and the legality principle

Confrontation of standards

Is the blanket ban of governors (due to the Prison Act of 1952 and the Service Standing Order) contrary to the prisoners freedom of speech?

House of Lords decision

Regina v Secretary of State for the Home Department Ex Parte Simms

“Freedom of speech is the lifeblood of democracy”

Lord STEYN

Miscariage of justice = a situation in which someone is punished by the law courts for a crime that they have not committed

So, is the restriction of prisoners freedom of speech a necessity for democracy and national security?

1. The help of journalists against miscarriages of justice

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime [...] "

2. The European Convention on Human Rights : article 10 (1953)

House of Lords decision

Regina v Secretary of State for the Home Department Ex Parte Simms

≠ Right of free speech

=> "Visits to inmates by journalists in their professional capacity should in general not be allowed" + undertaking

SERVICE STANDING ORDER (Home Secretary)

PRISON ACT: 1952 (Parliament)

=> The Home Secretary can make the rules for: "The regulation and the management of prisons [...] and for the [...] treatment, employment, discipline and control over persons required to detained therein"

Legality principle= the law should be clear, ascertainable and non-retrospective

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.” - Lord Hoffmann

3. Parliamentary sovereignty and the legality principle

House of Lords decision

Regina v Secretary of State for the Home Department Ex Parte Simms

3. Parliamentary sovereignty and the legality principle

Ultra vires = meaning "beyond the powers”. It describes actions taken by government bodies or corporations that exceed the scope of power given to them by laws

“What this case decides is that the principle of legality applies to subordinate legislation as much as to acts of Parliament. Prison regulations expressed in general language are also presumed to be subject to fundamental human rights” “Fundamental rights cannot be overridden by general or ambiguous words” - Lord Hoffmann

House of Lords decision

Regina v Secretary of State for the Home Department Ex Parte Simms

60

346

From 1970 to 2021 :

• Academic decision

• Hirst v UK [2005]

• Future change of the Prison Act

• Prison Service Order was changed in 2010

• Human Rights Act (1998)

Consequences and impact

Regina v Secretary of State for the Home Department Ex Parte Simms

• Protection of the freedom of speech even for prisoners

• Importance of journalism in criminal cases

• Legality principle

• Parliamentary sovereignty

conclusion

Regina v Secretary of State for the Home Department Ex Parte Simms

Thank you for listening! Questions?

• Government website - Prison Service Orders : https://www.gov.uk/guidance/prison-service-orders-psos

• Scottish Legal News - The database of miscarriages of justicehttps://www.scottishlegal.com/articles/database-of-miscarriages-of-justice-in-uk-launched

• Cambridge dictionnary : https://dictionary.cambridge.org/dictionary/english/

• Cornell dictionnary : Wex | Wex | US Law | LII / Legal Information Institute (cornell.edu)

• Each other (english newspaper) : https://eachother.org.uk/stories/screaming-to-an-empty-room/

• Official home of the UK legislation : https://www.legislation.gov.uk/ukpga/1998/42/contents

bibliography

Regina v Secretary of State for the Home Department Ex Parte Simms

• Parliament website (full decision) : https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd990708/obrien01.htm

= House of Lords

Regina v Secretary of State for the Home Department Ex Parte Simms

MAGISTRATES COURT

COUNTY COURTS

FAMILY COURT

TRIBUNALS

CROWN COURT

HIGH COURT OF APPEAL

COURT OF APPEAL

SUPREME COURT

THE UK JURIDICTIONS