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Friday, 19 November 2004


The Court of Appeal gave an interesting ruling on authors' rights in Nilsen v Governor of Full Sutton Prison [2004] EWCA Civ 1540, posted on the BAILII website.

Nilsen, a notorious killer who had been sentenced to concurrent life sentences for six murders on the basis that "life" meant "life and not the usual few years most UK murderers serve, wanted to publish the details of the murders in an autobiography. He gave his transcript to his solicitor with a view to its publication. Copies were made of it and Nilsen wished to have the transcript returned to him to do further work on it. The prison governor, following the guidance of the Secretary of State, refused to let him have it back, citing the Prison Standing Orders which banned prisoners from writing material about their crimes if that material was intended for publication. Nilsen's application for judicial review of the governor's decision was refused by Mr Justice Maurice Kay, so he appealed to the Court of Appeal.

The Court of Appeal dismissed Nilsen's appeal, holding that the trial judge's refusal of the application for judicial review was lawful. The powers conferred on the Secretary of State included the power to have regard, when regulating what a prisoner could do, to the natural incidents of penal imprisonment, which were susceptible to change. In considering what restrictions could properly be placed on prisoners as natural incidents of imprisonment, regard could be had to the expectations of right thinking members of the democracy whose laws had deprived the prisoners of their liberty. No penal system could readily contemplate a regime in which a murderer would be permitted to publish an article glorifying in the pleasure the crime had caused him. Nor could Nilsen complain that his human rights had been infringed. The case law of the European Court of Human Rights did not establish that it was disproportionate for imprisonment to carry with it some restrictions on freedom of expression, for those restrictions to have regard to the effect of that freedom in the outside world.

The IPKat condones neither murders nor the commercial exploitation of their deeds. However, he wonders whether it is necessary, in order to prevent the commercial publication of a criminal's memoirs, to prevent him from even gaining access to his own transcript so that he could work on it further: the process of writing can be a great form of comfort and therapy.

Nilsen's crimes here, here and here
Crimes worth writing about here, here and here

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