R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622

• Daly kept papers from his solicitor in his cell.

• He was excluded from his cell when it was searched, as was allowed under legislation, and his legally privileged documents were examined in his absence, which breached his rights to communicate confidentially with his legal advisor (under a European convention covered by HRA).

• HL said that this infringement of a right might sometimes be justified, such as with a prisoner who had a history of intimidating guards, but as a general policy it was unlawful and went beyond the bounds of the authorising legislation.

• Therefore the prison guards manual which said that prisoners should always be removed from their cells was unlawful and void. 

Lord Steyn

• He raised an important point: that regarding ECHR rights, the courts no longer used the traditional judicial review criteria, but a proportionality test.

• The criteria are whether:

  1. The legislative objective is sufficiently important to justify limiting a fundamental right;

  2. The measures designed to meet the legislative objective are rationally connected to it; and

  3. The means used to impair the right or freedom are no more than is necessary to accomplish the objective. He says that these are stricter tests than those traditionally used.