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Cite as: [2008] ECHR 174
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22 February 2008
FOURTH SECTION
Application no.
36936/05
by Edward SZULUK v United Kingdom
against the United Kingdom
lodged
on 14 October 2005
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Edward Szuluk, who was born in 1955, is a British national who is currently in prison in South Littleton, Worcestershire. He is represented before the Court by Mr J. Scott, a lawyer practising at Langleys Solicitors in York.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Monitoring of the applicant’s correspondence
In November 2001 the applicant was sentenced to fourteen years’ imprisonment for drug offences. In April 2001 (while awaiting trial) he suffered a brain haemorrhage for which he underwent surgery. In July 2002 he underwent further surgery. The necessary treatment to monitor his life threatening condition was not available in prison and he was required to go to hospital every six months to undergo specialist examination and if necessary further treatment.
Accordingly, the applicant wished to correspond with his specialist to ensure that he would receive the necessary treatment and supervision. However, though he was a Category B prisoner, he was at the time detained in a prison that held Category A prisoners. On an unspecified date he was moved to another prison, which also held Category A prisoners. As a result he fell within the provisions of a general order, Prison Service Order (PSO) 1000, that dealt with prisoner communications in connection with those who were in Category A, or were in prisons which held Category A prisoners (see Relevant Domestic Law and Practice below).
The applicant expressed his concerns about his medical correspondence being read and applied for a direction that such correspondence should be accorded confidentiality. The governor of the prison in which the applicant was being detained decided initially that his medical correspondence would not be read provided certain conditions were met. All outgoing and incoming mail was to be marked “medical in confidence.” Outgoing correspondence would be checked to ensure that it was being sent to a nominated address and incoming mail was to be marked with a distinctive stamp of the relevant health authority.
The prison governor was concerned that his decision that the applicant’s medical correspondence should not be monitored was not in accordance with Prison Service policy and as a consequence sought further advice on the matter. He was advised that his original response was not appropriate and consequently changed his approach, a decision which was communicated in a letter dated 28 November 2002 addressed to the applicant’s solicitors. It was decided that it was necessary to examine all medical correspondence for illicit enclosures. All incoming mail would be directed, unopened, to the prison’s medical officer who would in turn examine its contents in order to ascertain its medical status, reseal it and issue it to the applicant. All outgoing mail would have to be passed to the medical officer for examination to ascertain its medical status, after which it would be resealed and sent on to its intended destination.
The applicant contested the decision to monitor his medical correspondence. He was concerned that his attempts to confirm that he was receiving adequate treatment in hospital might be regarded by the prison medical officer as criticism and that this might inhibit his relationship with his external medical specialist. On this basis, he brought judicial review proceedings challenging the decision to monitor his medical correspondence.
2. Judicial review proceedings
On 20 February 2004 the presiding High Court judge, Mr. Justice Collins, allowed the applicant’s claim for judicial review. The Prison Service submitted, inter alia, that it would be difficult to make the necessary arrangements to enable confidential medical correspondence. They argued that there were a large number of health bodies that a prisoner might wish to correspond with and that some health bodies might lack franking machines that would enable prisons to identify the veracity of the sender.
Mr. Justice Collins concluded that there were exceptional circumstances in the applicant’s case. The exceptional circumstances were said to be the life-threatening nature of his condition and his understandable desire to ensure that his treatment in prison did not affect him adversely. Mr. Justice Collins also found that the initial decision of the governor to enable the applicant to correspond on a confidential basis with his specialist indicated that it was reasonable to permit such confidential correspondence. The evidence of the Prison Service regarding the practical problems associated with making arrangements to enable confidential medical correspondence were not directly material in an exceptional case such as the present one.
As a result the governor’s decision requiring the prison medical officer to check all of the applicant’s incoming and outgoing medical correspondence was quashed. The Prison Service appealed against the judgment of Mr. Justice Collins.
3. The proceedings before the Court of Appeal
In a judgment delivered on 29 October 2004 the Court of Appeal allowed the Prison Service’s appeal. It was considered that while the prison governor’s initial decision to allow the applicant’s medical correspondence with his external specialist confidentiality strongly suggested that its exemption from Chapter 36.21 of PSO 1000 would be a perfectly reasonable course, the onus still remained on the applicant to establish that anything more invasive was a disproportionate interference with his Article 8 rights.
The Court of Appeal concluded that there was not a disproportionate interference with the applicant’s rights under Article 8. It found that the requirement that correspondence should be read answered legitimate and pressing policy objectives, which were tabulated in Chapter 36.1 of PSO 1000. Since the only less invasive step that the Prison Service could take would be to withdraw all scrutiny, monitoring of the medical correspondence by the prison medical officer was not excessive. The process by which the decision was reached was not arbitrary. In particular, it did not result from the rigid application of a policy, as the withdrawal of monitoring had not only been considered but had been implemented until, on reconsideration, monitoring was resumed. Nor did the restriction deny the essence of the applicant’s rights under Article 8 as it related to one correspondent only (namely the medical specialist) and it confined the interference to a medically qualified reader. Though there was a risk of abuse of monitoring, for example if the applicant’s prison life or treatment were made more difficult as a result, the risk had been minimised by confining surveillance to the prison medical officer.
4. Petition to the House of Lords
On 18 April 2005 the applicant’s petition for leave to appeal was refused by the House of Lords on the ground that the petition did not raise an arguable point of law of general public importance.
B. Relevant domestic law and practice
Section 47(1) of the Prison Act 1952 authorises the Home Secretary to make what are now the Prison Rules 1999, amended by the Prison (Amendment) (no.2) Rules SI 2641/2000. These have the force of law.
Prison Rule 34 provides:
(1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed—
(a) does not interfere with the convention rights of any person; or
(b) (i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the convention right to be interfered with; and
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are—
(a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the judiciary; or
(h) the protection of the rights and freedoms of any person.”
Chapter 36.1 of PSO 1000 provides as follows:
“Prison management must provide facilities for prisoners to maintain contact with family and friends. Prisoners’ rights to respect for their private and family life and correspondence are also protected by Article 8 of the European Convention on Human Rights. The Prison Service’s duty to protect the public allows us to interfere in this privacy in order to minimise the possibility that, in communicating with the outside world, prisoners:
(i) plan escapes or disturbances,
(ii) jeopardise the security and good order of the prison;
(iii) engage in offences against criminal law or prison discipline;
(iv) jeopardise national security;
(v) infringe the rights and freedoms of others.
Chapter 36.21 of PSO 1000 reads:
“All correspondence, other than correspondence protected by PR39 [that is correspondence with legal advisors] or that with the Samaritans, must be read as a matter of routine in the following cases:
(i) all prisoners of whatever security category, held in a unit which itself holds Category A prisoners.”
Chapter 36.22 continues as follows:
“Routine reading is necessary in these cases in order to prevent escape and, in the case of Category A prisoners, in the interests of public safety. It is also necessary in preventing crime and disorder, for the protection of the rights and freedoms of others, and, in some cases, necessary in the interests of national security or the economic well being of the country.”
These provisions do not have the force of law (although for Convention purposes they are regarded by the domestic courts as “prescribed by law”); they are the policy according to which the Home Secretary, through the Prison Service, exercises his statutory powers.
Special treatment is given to various forms of correspondence apart from that with legal advisors which is specifically covered by rule 39 and that with the Samaritans which is specifically mentioned in chapter 36.21 of PSO 1000. Correspondence with the courts, the Bar Council, the Criminal Cases Review Commission, the Office for the Supervision of Solicitors, the Parliamentary Commission of the Administration, the Office of the Legal Services Ombudsman, the Probation Ombudsman, the Commission for Racial Equality and with Members of Parliament are generally treated as confidential.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the monitoring of his medical correspondence, albeit limited to the prison medical officer, constituted an interference with his right to respect for his correspondence and private life. In this connection he notes that the prison medical officer was an employee of the Prison Service and cites the Court of Appeal’s observation that there was scope for abuse of the monitoring procedure. He further asserts that one of the main purposes of his correspondence with an external specialist was to ensure that the medical treatment he received in prison was adequate, which could easily be perceived as criticism on the part of the prison medical officer, a fact which inhibited free communication with his specialist and prejudiced the quality of treatment he received. He also argues that the serious nature of his health problems made it particularly important that his medical correspondence was not inhibited.
The applicant further complains under Article 8 that the interference with his correspondence was not necessary within the meaning of that provision. In this vein, he cites the initial decision of the governor that his medical correspondence should not be monitored as evidence that the later interference was not in fact necessary. He also argues that as Prison Service policy acknowledges that there should be confidential correspondence with people outside the prison system who may have a role to play in protecting their rights, such as the Parliamentary Commissioner for Administration, by way of example, this should also be extended to doctors, who also play an integral role in protecting prisoner’s rights, particularly when they suffer from a serious medical condition such as the applicant himself. Lastly, he asserts that the practical problems identified by the Prison Service have no relevance to his particular case as the bona fides of his doctor has been proved through the course of his ongoing treatment and that there has been no suggestion that his doctor would not be able to frank all correspondence with the applicant allowing for its easy identification.
QUESTION TO THE PARTIES