England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON. MR JUSTICE COLLINS

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 October 2004

Lord Justice Sedley:

1. This is the judgment of the court.
2. On 20 February 2004 Collins J held that the restrictions placed by the Governor of HMP Full Sutton upon the claimant's correspondence with his NHS consultant were disproportionate and therefore unlawful. The governor and the Home Secretary, who was the author of the restrictions which the governor was implementing, appeal against this decision with the permission of Maurice Kay LJ.
3. While awaiting trial on serious drugs charges in 2001, the claimant suffered a brain haemorrhage. After surgery in Frenchay Hospital, Bristol, he required follow-up treatment and check-ups. He failed to attend for these, for reasons which are disputed. On 30 November 2001 he was sentenced to 14 years' imprisonment. In July 2002 he had to be readmitted to hospital for further surgery. Following his discharge back to prison he required monitoring and twice-yearly check-ups.
4. Although he was a Category B prisoner, the claimant was located at the beginning of his sentence in HMP Full Sutton, a high security prison. He wanted to correspond in confidence with his consultant neuroradiologist at Frenchay Hospital, Dr Shelley Renowden, but was concerned that such correspondence would be routinely opened and read by the prison authorities as required by prison standing orders (PSO). He applied to the governor, Mr Harding, for a direction that this should not be done. The governor, considering it a reasonable request, granted it. But he then consulted and was overruled by headquarters. He therefore arranged to have the claimant's medical correspondence opened and checked for authenticity by the prison medical officer.
5. The claimant in consequence brought these proceedings to quash the latter decision and have it retaken according to law. He has since been moved to HMP Long Lartin, another high security prison, where – we are told – he is being allowed to correspond in confidence with his outside medical advisor, presumably in deference to Collins J's ruling. But the Home Office now challenges that ruling.
6. The Prison Act 1952 by s.47(1) 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. Rule 34 provides:

Communications generally

(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 interest 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.

7. The first sub-rule imposes a general prohibition on outside communications, subject to two qualifications. The first is where the Home Secretary has given permission for such communications. The second allows restrictions to be imposed on all communications, internal and external, for specified purposes and on specified conditions, one of which is that the restriction must be Convention-compliant. Here, by PSO 1000 Ch.36, the Home Secretary has given leave generally for prisoners to communicate with persons outside (not to have done so might have fallen foul of the Convention) but has gone on to impose restrictions.
8. The material parts of Ch. 36 are these:

36.1 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.

…………

36.21 All correspondence, other than correspondence protected by PR39 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;

(ii) all Category A prisoners, including those who are being considered for Category A status, whether convicted or unconvicted and held in any category of prison;

(iii) all prisoners on the E List, in any prison.

9. These provisions do not have the force of law (although for Convention purposes they are regarded as 'prescribed by law'): they are the policy according to which the Home Secretary, through the Prison Service, exercises his statutory powers. They are therefore to be interpreted and applied with sufficient flexibility to meet the needs and entitlements, especially under the Convention, of individual cases, though not with such variation as to produce unequal treatment of like cases.
10. On behalf of the appellants Mr Coonerty, a senior member of the Prison Service, explains that the policy has been adapted to protect the confidentiality of correspondence with the Samaritans, with Members of Parliament, with the Ombudsman services and with the Bar Council and Office for the Supervision of Solicitors. Correspondence with the Health Ombudsman is now under consideration, though on terms (it seems) which revive the former 'prior ventilation' rule, requiring the issue first to have been canvassed with the Prison Service.
11. The present question, therefore, is not whether the Security Manual which contains these standing orders is being treated as written in stone. It is whether, given their acknowledged adaptability, they are required by law to accommodate Mr Szuluk's correspondence with his neuroradiologist in the category of inviolable correspondence. Mr Southey on the claimant's behalf does not seek any wider adjustment of Ch.36, although he recognises that if he is successful other prisoners in a situation analogous to Mr Szuluk's can expect to be similarly treated.
12. Collins J answered the question in the claimant's favour. He concluded his judgment in this way:

32. Normally, general rules will cover the situation, and if someone does not fall within the generality there will usually be no reason to take him out of the provision. But there are, and it must be recognised that there will be, exceptional cases.

33. In this case the claimant is suffering from a life-threatening condition. He is undoubtedly, in those circumstances, and understandably concerned to ensure that his treatment in prison does not in any way affect him adversely. He wants, and understandably wants, to obtain, if necessary, reassurance from his specialist and from other medical practitioners, if there are any, who are involved in treating him.

34. It did not appear to Mr Harding, initially, when he gave his decision of 18th September, that there was any real problem in suggesting the solution that he did. I appreciate that he was worried and he sought advice, but the fact that he was prepared (and he, after all, I assume had some expertise in the area) to agree that a particular special arrangement could take place, does suggest to me that it could hardly properly be said that it was something which should be regarded as outside anything that was reasonable.

35. In my view, the exceptional facts of this case do justify the exceptional treatment that Mr Harding initially agreed would apply. It was proportionate in this prisoner's case for that relaxation to take place. I have already, at the commencement of this judgment, indicated the problems that disclosure to the Medical Officer would or could engender in the circumstances of this case. There is no question of concern as to how far "medical practitioner" extends. It is clear that any such correspondence, in order to fall within this regime, can only be with whomever is treating him -- be he specialist or other medical practitioner -- and that there must be the identification that the decision of the 18th September said was necessary.

36. As it seems to me, the general concerns of Mr Coonerty to which, of course, I pay the greatest of respect, are not directly material in this sort of case where one is dealing with exceptional circumstances. There must always be that form of discretion. It may be that in most cases it is perfectly proper, for whatever reason, to decide that something along the lines of the second suggestion, the one of November, is appropriate.

37. What makes this case special is the fact that this prisoner is suffering from a life-threatening condition and is undergoing treatment outside the prison, and is in the need of continual medical care, in the sense of biennial specialist observations, as time goes by. In those circumstances, and making clear that this is a case which, in my view, turns specifically on its own exceptional facts, it is appropriate to grant the relief sought and to quash the decision of the 18th November. ….

13. Mr Kovats submits that this reasoning is flawed in two ways. The first is its apparent assumption that if the governor's initial, favourable, decision was reasonable - as it was - the contrary decision was unnecessary and therefore disproportionate. The latter, he says, does not follow from the former. The second is that there is no necessary relationship between the seriousness of a prisoner's condition and the potential justification for scrutinising his correspondence with his doctor. We think there is force in these criticisms. But they do not carry the appeal home if, as Mr Southey contends, the judge nevertheless reached the right conclusion. We turn therefore to that question.
14. We do so on the footing that, while the governor's initial decision strongly suggests that exempting the claimant's correspondence with Dr Renowden from Ch.36.21 would be a perfectly reasonable course, the onus still remains on the claimant to establish that anything more invasive is a disproportionate interference with his art. 8 rights.
15. Mr Kovats has urged us to approach this question deferentially – that is to say, according to the Home Secretary as rule-maker and as the author of the corrective direction to the governor a wide margin of discretion. He has shown us what is said on this topic by Laws LJ in International Transport Roth Gmbh v Secretary of State for the Home Department [2003] QB 728, 765-7 on the degrees of deference which the courts will show to other constitutional authorities. He accepts nevertheless, and rightly, that the limit of deference is legality. Mr Southey in response has reminded us of Lord Hoffmann's remarks in R (Pro-Life Alliance) v BBC [2004] 1 AC 185, §74-7, about the inappositeness of the word 'deference' in this context, a passage which likewise reasserts that the true question is legality.
16. Bradley and Ewing, Constitutional and Administrative Law (13^th ed., 2003), p.87, cite the “perceptive summary” contained in the judgment of Nolan LJ in M v Home Office [1992] QB 270, 314:

“The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.”

This proposition accommodates the functions created by Human Rights Act. It means that our task is to delineate the lawful province of the executive in relation to the matter before us, and then to step back. What has changed is that the delineation of what is lawfully a matter for the executive may today depend, as it does here, upon what is proportionate.

17. This is one reason why the citation of authority on the elusive question of deference affords little concrete help from case to case. Whether and where the court may intervene depends not (save in the last analysis) on these large principles but on what is at issue. Once that is ascertained and analysed, the applicability of the principles frequently becomes unproblematical.
18. Article 8 provides:

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well–being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

19. In the present case we are looking at a security situation which is summarised in Ch.36.1, and which will be at its sharpest in high security prisons. Mr Southey realistically accepts that, although his client is not in Category A (that is, a prisoner whose escape would present the gravest danger to the public), the risk that he may be used by Category A prisoners makes it proper in principle to apply the same restrictions to him. Even so, we are required by s.6 of the Human Rights Act to decide whether the application of these restrictions to Mr Szuluk's medical correspondence infringes his rights under art.8 of the Convention.
20. In Mr Szuluk's case the proffered justification is, in essence, that while it is of course possible to verify the existence, address and qualifications of Dr Renowden (whose bona fides is not in question), there is no way of being sure that she herself is not being intimidated or tricked into transmitting illicit messages. While the same is true of, for example, the secretarial staff of MPs, the importance of unimpeded correspondence with MPs is accepted as outweighing the risk. In relation to doctors, by contrast, the prisoner's health is the concern and the immediate responsibility of the Prison Medical Service. It may be that allowing the prison medical officer to read the prisoner's correspondence with an outside medical practitioner will mean that the PMO sees criticisms of his or her own performance; but it is inherently unlikely that this carries the kind of risk that might attend, say, the reading by a discipline officer of a letter of complaint to the Prisons Ombudsman. Moreover, if it relates to the prisoner's wellbeing it is probable that the PMO ought in any event to know about it.
21. Even so, the seeking and obtaining of medical advice is properly regarded as confidential, and its disclosure will always be potentially embarrassing and capable of undermining candid communication. This, rather than any particular feature of his correspondence, is the foundation of Mr Szuluk's case. On his behalf Mr Southey also submits that it is so simple and straightforward for the prison authorities to verify Dr Renowden's bona fides that the requirement that Mr Szuluk's correspondence with her be read, albeit by the prison medical officer, is disproportionate to the accepted demands of security.
22. There is no dispute that the reading of prisoners' correspondence is governed by law, nor that it is directed to the prevention of crime and the protection of the rights and freedoms of others. The issue is whether, in the language of art. 8(2), the reading of Mr Szuluk's medical correspondence is necessary to this end in a democratic society, a question which is tested in the jurisprudence of the European Court of Human Rights by deciding whether it is proportionate.
23. In our judgment the requirement that Mr Szuluk's correspondence with Dr Renowden be read by the prison medical officer was a proportionate interference with his art. 8 rights.

(a) First, it answered the legitimate and pressing policy objectives tabulated in Ch.36.1, which we have set out above.

(b) Secondly, short of withdrawing all scrutiny, there was no less invasive measure available to the prison service.

(c) Thirdly, and for much the same reason, reading by the prison medical officer was not in our view excessive. This is not a case like R (Daly) v Home Secretary [2001] 2 AC 532 where scrutiny was permissible but the manner in which it was conducted was not.

(d) Fourthly, the process by which the measure was decided upon was not arbitrary. In particular, it did not result from the rigid application of a policy. The withdrawal of monitoring had not only been considered but had been implemented until, on reconsideration, monitoring was resumed.

(e) Nor did the restriction deny the essence of the claimant's art. 8 rights. It related to one correspondent only and it confined the interference to a medically qualified reader.

(f) There is an inescapable risk of abuse, for example if Mr Szuluk's prison life or treatment are made more difficult because of what he is observed to be writing. But we consider that the risk, having been minimised by confining surveillance to the prison medical officer, is outweighed by the foregoing factors.

24. Returning to the larger question of the relationship of the court to the executive, the question is not whether the governor or the Prison Service possesses a discretion to allow a prisoner in Mr Szuluk's situation to correspond in confidence with an outside medical practitioner. Provided the governor is satisfied that it can be done without unacceptably jeopardising security, he may permit it. Were it not so, the policy set out in the PSO would be being applied with the rigidity of a rule. The question is whether the governor is obliged to permit it.
25. Under the Human Rights Act 1998 and the Convention, this is a question of law. It has to be addressed by asking whether it is a proportionate interference with a high-security prisoner's right to respect for his private life and his correspondence to check the authenticity of mail passing between him and an outside medical practitioner who has been treating him.
26. The court will ordinarily accept from the executive the evaluation of the risk of serious abuse of outside mail because the prison service knows far more about it than the court does, and because it involves no immediate issue of law. The court's task is to consider whether, in the light of it, a sufficiently pressing need is demonstrated to justify what will otherwise be the denial of a fundamental right. Once the facts are established, to abstain from adjudicating on them is not deference but abdication.
27. The Prison Service cannot exclude, and we do not exclude, the possibility that in another case art. 8 will make it disproportionate to refuse to waive Ch. 36.21 in relation to medical correspondence. But in respectful disagreement with Collins J, we do not consider that this is such a case. In our judgment the appellants have established that the limited interference with Mr Szuluk's art. 8(1) right falls within the justification afforded by art 8(2). The defendants' appeal is accordingly allowed.