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

LE GOUIC LouaneJOLAS Soizic

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

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

Framework

02

03

01

Clarifications

Facts

Procedure

05

06

07

Consequences and impact

House of Lords decision

Conclusion

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

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)

The House of Lords (Supreme Court website)

THE UK JURIDICTIONS

SUPREME COURT

= House of Lords

COURT OF APPEAL

CROWN COURT

TRIBUNALS

HIGH COURT OF APPEAL

MAGISTRATES COURT

COUNTY COURTS

FAMILY COURT

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

FACTS

Simms and O'Brien = convicted of murder

Appeal denied

Ask for the help of journalists

Refusal by the prison

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)

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

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

SERVICE STANDING ORDER, section 47, paragraph 37

FACTS

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…"

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

Procedure

Criminal division of the court of appeal:

First instance:

Claimants? Mr Simms and Mr O'Brien

• Dissident opinion

• Prisoner's can't be interviewed by journalists

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

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

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

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

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

Confrontation of standards

House of Lords decision

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?

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

Blanket ban= total prohibition

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

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

House of Lords decision

1. The help of journalists against miscarriages of justice

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

"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 [...] "

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

“Freedom of speech is the lifeblood of democracy”

Lord STEYN

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

3. Parliamentary sovereignty and the legality principle

House of Lords decision

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

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"

SERVICE STANDING ORDER (Home Secretary)

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

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

≠ Right of free speech

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

3. Parliamentary sovereignty and the legality principle

House of Lords decision

“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

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

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

Consequences and impact

• Academic decision

• Hirst v UK [2005]

• Future change of the Prison Act

• Prison Service Order was changed in 2010

• Human Rights Act (1998)

From 1970 to 2021 :

346

60

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

conclusion

• Protection of the freedom of speech even for prisoners

-> essential to democracy

• Importance of journalism in criminal cases

• Legality principle

• Parliamentary sovereignty

Thank you for listening! Questions?

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

bibliography

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

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

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

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

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

• 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

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

THE UK JURIDICTIONS

SUPREME COURT

= House of Lords

COURT OF APPEAL

CROWN COURT

TRIBUNALS

HIGH COURT OF APPEAL

MAGISTRATES COURT

COUNTY COURTS

FAMILY COURT