ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
MRS JUSTICE FOSTER
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE NUGEE
and
MR JUSTICE COBB
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THE KING on the application of FAJR ELLIS |
Appellant |
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- and - |
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SECRETARY OF STATE FOR JUSTICE |
Respondent |
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Jennifer Thelen (instructed by Government Legal Department) for the Respondent
Hearing date: 11 June 2025
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Crown Copyright ©
Lord Justice Bean:
(1) A challenge to the Regulations governing student loans. These permitted eligible prisoners to apply for a loan but with certain restrictions which do not apply to students outside prison. The Claimant alleged that this interfered unlawfully with his right to access to education. The judge dismissed that challenge and no application was made for permission to appeal that part of the decision to this court;
(2) The "generalised restriction of access challenge", relying on Article 2 of Protocol 1 to the ECHR ("A2P1"). The judge dismissed that part of the claim. I shall return to it in the course of this judgment.
(3) A particular decision to withdraw Mr Ellis' use of his Chromebook and to restrict his access to IT at HMP Hull. This made completion of his coursework difficult, and was said to be an unlawful interference with his right to education. The judge upheld that part of the judicial review claim.
The generalised right of access challenge
"16.6 Access to the Internet by Prisoners
The basic principle that applies to all forms of communication – preventing the transfer of information that might aid crime, threaten prison security or aid escape from custody and the protection of victims must be applied with regards to Internet access for prisoners and supervised individuals in the community.
16.7 Access to Internet facilities may allow prisoners or supervised individuals in the community to abuse [or harass] victims either through direct, electronic communication or by indirect proxy contact outside the prison and these considerations must be weighed against any perceived advantages.
16.8 The risk exists that prisoners could use the Internet to commit, prepare for or encourage crime whilst in custody. Additionally, they could access material that might endanger the security of the prison e.g., access to bomb-making techniques.
16.9 The accessibility of learning materials by prisoners in custody must be balanced against security considerations. Access to the Internet will only be granted following a thorough risk assessment on a case-by-case basis of the system, hardware, software and connectivity. Prisoners access to IT whilst in custody is subject to individual assessment as per the National Security Framework and advice on appropriate access controls can be obtained from security group, the IPA team.
16.10 Prisoners must not be allowed uncontrolled access to the Internet and/or to a computer or IT system whilst in custody that has software installed enabling Internet connectivity without seeking approval from security group, the IPA team and the completion of a thorough risk assessment."
"Higher education in prisons is primarily geared towards prisoners studying OU courses. The vast majority of prisoners across the prison estate, studying undergraduate or postgraduate degrees, undertake an OU course. The OU tailor-makes its curriculum, creates bespoke study packs and offers personalised support for prisoners. The MoJ is a partner of the OU and worked with the OU to create a 'Virtual Campus' ('VC'), a computer system that allows students to access their learning materials in digital form whilst maintaining security standards. Further, the MoJ provides grant funding to the OU. For April 2020 to March 2023, a grant of £2,505,000 is in place. The purpose of the grant is to help enable prisoners to access higher education, by helping to cover costs related to the provision of learning materials (the OU produce bespoke textbooks and associated workbooks), tutor support, administration and advice, and other costs that arise by virtue of the student being located in prison. I note that the MoJ also has a memorandum of understanding in place with the OU. In light of the above, prisoners are encouraged to study higher education courses through the OU whose courses are designed so that prisoners receive all the materials they need, and do not need to seek out additional resources. It is open to prisoners to study through other universities and course providers, as the Claimant has done. However, prisoners may naturally encounter some practical difficulties in pursuing these courses, as such courses are not designed to be studied by prisoners. It is ultimately a decision for a prison's governor as to whether a prisoner may study a particular course."
i) Local prison support: At HMP Hull he had designated local long distance learning support, with a distance learning coordinator (DLC), who acted as an intermediary between the Appellant and his course provider, printed out resources on request, arranged telephone tutorials and provided support with various things, such as academic writing.
ii) Printing and post: HMP Hull printed course work for the Appellant, who had been asked to make regular requests for printing to ease the burden. The problems with receipt of materials from the university arose because the materials were not properly marked, and advance notification was not provided to relevant prison staff. A review of procedures took place with the Appellant and his university tutor, to ensure receipt of coursework and books by post, which arrangements the Respondents said were working well at the time of the response to the judicial review.
iii) IT facilities: The Appellant normally had access to the internet via the VC2 within the Education Department, with sessions of up to 27 hours per week. There was no limit to the amount of work he could save on the VC2.
iv) Site access: The Education Department provided access to sites that were cleared as safe "white sites". Prior to leaving HMP Hull, the prison was looking into how the Appellant could be given independent access to the university website, which was not on that list.
v) Until 28 January 2022, the Appellant also had access to a Chromebook. This was removed for a period but has been restored at HMP IOW.
vi) Tutor access: At HMP Hull the Appellant could make as many telephone calls in a day as desired to approved numbers, including calling his tutor from his cell. Across the prison estate it is the case that a call may only last 15 minutes. After 5 minutes another call can be made. He was able also to use one of his two video calls per month to speak to his tutor face to face.
vii) A system was set up for him to exchange drafts of his dissertation with his tutor for feedback.
The judge's refusal of permission to amend the claim
"I am clear that the Claimant may not expand this judicial review to challenge a running selection of incidents complained of after this claim was issued or at the new establishment. As noted by Miss Thelen, the application was made very late, contained a plethora of factual assertion, and the Defendants have had insufficient time to respond in appropriate detail. This appears to be the fourth change to the Claimant's factual case and/or evidence since inception, and although the new material is contained in a new bundle for the Court it is not agreed."
"This case is one of those where the state of the evidence is central to the assertions made. Further, in the present context as Ms Anderson's evidence explained, the provision of education is, within broad policy parameters, one that is devolved upon individual Governors and in this case the Claimant has been moved to a different establishment. The evidence available to the Court suggests that the Claimant's position evolved significantly both at HMP Hull and at HMP IOW..."
"It is inappropriate to treat this application for judicial review as a continuous process whereby the Court reviews the ongoing decision-making, insofar as it is brought to its attention, of a new establishment not the subject of the judicial review for which permission was granted. This is as Miss Thelen submitted, approaching a case of the kind averted to by Munby J in R (P) v Essex County Council [2004] EWHC 2027 (Admin), where he drew a distinction between monitoring and regulating the performance of public authorities, and challenges to discrete decisions. The latter being the proper purview of the Administrative Court. However, the real difficulty is that the Defendants have submitted there has been no opportunity to take detailed evidence as would be required in a matter so connected to the day-to-day evidence at HMP IOW, where systemic challenges are again sought to be made on the basis of allegations of individual practical failings."
The judge's ruling on the generalised restriction of access challenge
"63. The Claimant suggests that the Second Defendant violated A2P1 through the absence of facilities made available to the Claimant, or the imposition of restrictions upon him. I reject this challenge. I accept, as submitted by Miss Thelen, that on the facts, the difficulties faced at HMP Hull were operational impediments - such as mis-addressing materials, illness, and the requirement to use sometimes indirect means of communication (through the DLC, for example) and not systemic under-provision nor denial of access to education in the sense understood by the authorities. To the extent that there were security checks on materials arriving at the prison, or set processes for receipt of study material, or the indirect nature of some communications with teachers and teaching institutions, it is impossible to say that they were not proportionate to the circumstances and the inevitable (perhaps occasionally somewhat disruptive) requirements of the prison security regime."
64. As the Defendants point out in their skeleton argument, in Arslan the Claimants were denied all access to a computer and Internet, where that access was vital for the continuation of their higher education studies. In the present case a number of initiatives and workarounds, including access to a non-OU "tailored" post-graduate course of study, have been put in place for the Claimant and the fact that the provision of and access to higher education may differ from what may be available outside prison is not evidence that it is unlawful and infringes the Claimant's rights. Even though on occasions evidencing a clunky system and some management hiccoughs (books sent back when arriving without warning, the need to use a social video slot for an academic encounter for example), even taking the picture as including long out of time examples, the whole does not add up to a breach of the obligation to afford access to education to the Claimant.
65. The list of accommodating strategies that HMP Hull employed, set out in the evidence of Ms Anderson, ….make clear this was not in any event a picture of failure that produced a lack of access; the Defendants have sought to remedy the issues that affected the Claimant adversely personally within the necessary constraints of the regime at HMP Hull. The strategies they used were comfortably adequate to afford him lawful access to education whilst in prison. It is unreal to expect that there will be entirely hindrance -free learning given the fact of the security imperative (see for example the provisions of the IT Policy contained in PSI 25/2014 IT Security Policy)."
The grounds of appeal
The application to amend: discussion
The ground relating to the generalised right of access challenge
The Appellant's submissions
"55. The Court emphasises, first of all, that that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention explicitly falls within the scope of Article 5 of the Convention. For example, prisoners may not be ill-treated, subjected to inhuman or degrading punishment or to conditions contrary to Article 3 of the Convention; they continue to enjoy the right to respect for family life; the right to freedom of expression; the right to practise their religion, the right of effective access to a lawyer or to a court for the purposes of Article 6; and the right to marry. Any restrictions on these other rights must be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment….. …
56. As regards the right to education, the Court recognises that, in spite of its importance, the right to education is not absolute, but may be subject to limitations. Provided that there is no injury to the substance of the right, these limitations are permitted by implication since the right of access "by its very nature calls for regulation by the State". In order to ensure that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim. However, unlike the position with respect to Articles 8 to 11 of the Convention, it is not bound by an exhaustive list of "legitimate aims" under Article 2 of Protocol No. 1. Furthermore, a limitation will be compatible with Article 2 of Protocol No. 1 only if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Although the final decision as to the observance of the Convention's requirements rests with the Court, the Contracting States enjoy a certain margin of appreciation in this sphere (see Velyo Velev, cited above, § 32).
57. It is true that education is an "activity that is complex to organise and expensive to run", whereas the resources that the authorities can devote to it are necessarily finite. It is also true that in deciding how to regulate access to education, a State must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them. However, the Court cannot overlook the fact that, unlike some other public services, education is a right that enjoys direct protection under the Convention. It is also a very particular type of public service, which not only directly benefits those using it but also serves broader societal functions. Indeed, the Court has already had occasion to point out that "[i]n a democratic society, the right to education ... is indispensable to the furtherance of human rights [and] plays ... a fundamental role..." (ibid., § 33).
58. Even though the Court is aware of the Committee of Ministers' recommendations to the effect that educational facilities should be made available to all prisoners (see paragraph 36 above) (see Velyo Velev, cited above, §§ 21-24), it reiterates that Article 2 of Protocol No. 1 does not place an obligation on Contracting States to organise educational facilities for prisoners where such facilities are not already in place (ibid., § 34; see also the references therein). It notes, however, that the present applicants' complaint concerns the refusal to them of access to a pre-existing educational institution, namely the possibility of using a computer and Internet, as well as other electronic and audiovisual facilities aimed at training and education, which facilities were vital for the continuation of their higher education and the furtherance of their general knowledge. As noted above, the right of access to pre-existing educational institutions falls within the scope of Article 2 of Protocol No. 1. Any limitation on this right has, therefore, to be foreseeable, to pursue a legitimate aim and to be proportionate to that aim. Although Article 2 of Protocol No. 1 does not impose a positive obligation to provide education in prison in all circumstances, where such a possibility is available it should not be subject to arbitrary and unreasonable restrictions (ibid., § 34).
59. Finally, the Court notes that, as explained above, the restriction on the applicants' right to education was based on the rejection of their requests under section 67 of Law no. 5275 to be allowed to use a computer and have access to Internet in order to be able to continue their chosen academic studies. Basically, therefore, they are not being allowed to request admission to an existing educational programme of their choosing. Consequently, in assessing the applicants' complaint under Article 2 of Protocol No. 1 the Court will take due account of its case-law, hitherto developed under Article 10 of the Convention, on the right of prisoners to Internet access (see Kalda and Jankovskis, cited above). That case-law shows that in order to determine whether a refusal to provide prisoners with Internet access is justified in a given case, an assessment should be made of whether the domestic courts conducted an adequate evaluation of the actual risks to security inherent in the particular case, thus properly balancing the competing interests."
"The Court reiterates that the manner and means of regulating the mode of access to such facilities in prison fall within the Contracting State's margin of appreciation. In that connection, even though the security considerations advanced by the national authorities and the Government might be considered relevant in the present case, it observes that, as in the cases of Kalda (cited above, § 53) and Jankovskis (cited above, § 61), the domestic courts conducted no detailed analysis of the security risks and failed, on the one hand, to conduct the requisite exercise of balancing the different competing interests in the present case, and on the other, to fulfil their obligation to prevent abuse on the authorities' part. Under those conditions, the Court is not convinced that sufficient arguments have been advanced in the present case to justify the authorities' rejection of the requests to benefit from the right created under section 67 (3) of Law no. 5275."
Respondent's submissions
"(i) The right is narrow and is concerned with access to the established system of education. The correct approach is to ask if an individual is able to access the basic standard of education available – not has the state failed to do all it could do to ensure a pupil is accessing education.
(ii) This was the case even where a public authority is in breach of its duties under domestic law. A2P1 does not guarantee compliance with domestic law.
(iii) The ECtHR has considered the application of A2P1 in the context of prisons. The cases on which the Appellant relies, apply, rather than expand, [established] principles The right is not absolute, and may be subject to limitations Where educational facilities are available for prisoners, they should not be subject to "arbitrary and unreasonable restrictions" which limit effective access to education: Restrictions which so limit access must be foreseeable, pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Contracting States enjoy a "certain margin of appreciation in this sphere".
Discussion
"The Strasbourg jurisprudence … makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing 8 member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds unless … there is no alternative source of state education open to the pupil …. The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny a pupil effective access to such educational facilities as the state provides for such pupils?"
"Provided that there is no injury to the substance of the right, these limitations are permitted by implication, since the right of access [to education] by its very nature calls for regulation by the State. In order to ensure that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim. However, unlike the position with respect to arts 8-11 of the Convention, it is not bound by an exhaustive list of "legitimate aims" under [A2P1]. Further, a limitation will only be compatible with [A2P1] if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved": [emphasis added]
"The Appellant's approach turns the established caselaw on A2P1 on its head, and in particular the fact that A2P1 does not require the State to provide, or fund, education of a particular type or level. Effectively, the Appellant says the State should have been required to devote more resources to his education, in order to limit the obstacles he faced in undertaking the distance learning course he chose and to provide him the support he felt would allow him to perform to the best of his ability. That request falls far outside the scope of A2P1."
Lord Justice Nugee:
Mr Justice Cobb: