• In the case of R Daly v Home Secretary 2001 UKHL 26 2001 2 ac 532, it was found that, under proportionality, the intensity of review is far more significant than under the traditional Wednesbury unreasonableness.
  • The Home Secretary’s policy obliging correspondence between a prisoner and his legal representatives to be examined in the absence of the prisoner was a breach of the Human Rights Act 1998.

Facts of the Case

  • The Home Secretary created a policy involving a document ensuring that the prisoners were expected to leave their cells when searches would occur. This included examining the correspondence between the prisoners and their lawyers.
  • R subsequently applied for a juridical review; R argued that the policy breached R’s right to confidentiality with regard to the information circulated between himself and his lawyers.
  • The Human Rights Act had not been enacted during the time of this case therefore there were no Convention Rights present, as such any commentary on proportionality are merely obiter dictum.


  • Was the blanket policy which excluded prisoners a proportionate response which was deemed as a requirement to meet the aim of that policy?

Held by the House of Lords

  • The House of Lords allowed the appeal and held that the blanket policy did breach R’s common law right to legal professional privilege, thereby confirming that correspondence between prisoners and their lawyers did warrant confidentiality.

Lord Steyn:

  • Lord Steyn considered the comments of Lord Phillips of Worth Matravers, M.R. in the case of R (on the application of Mahmood) v Secretary of State for the Home Department (2001) which involved the review of decisions conflicting with human rights and recognised that this outcome required clarification.
  • Lord Steyn found that proportionality warrants a higher level of intensity of review. He set out the criteria in three.

Lord Steyn’s criteria on proportionality:

  • The objective of the legislation must be deemed as sufficiently important to justify a restriction on a fundamental right
  • The measures which are created to meet the objective are rationally connected to it, and
  • The means used to impair the right or freedom are no more than is necessary to accomplish the objective.  

Lord Bingham of Cornhill:

  • Lord Bingham of Cornhill acknowledged the difficulty this policy posed for prisoners and their ability to comfortably communicate with their legal advisers.
  • In an imperfect world there will necessarily be occasions when prison officers will do more than merely examine prisoners’ legal documents, and apprehension that they may do so is bound to inhibit a prisoner’s willingness to communicate freely with his legal adviser [16]

Editor’s Notes

  • R Daly v Home Secretary 2001 UKHL 26 2001 2 ac 532 sets a new tone for the approach to the test of proportionality which involve stricter tests than the ones that are traditionally used.