QUEENS BENCH DIVISION
AT CARDIFF CROWN COURT
London, WC2A 2LL
B e f o r e :
| HIRST|| Claimant|
|- and -|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Hickman and Rose for the Claimant)
Miss Eleanor Grey
(instructed by the Treasury Solicitor for the Defendant)
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Elias:
“We propose that in future should Mr Hirst wish to take part in such an interview he will make a request to the Governor providing details of the journalist, radio station and subject matter of the programme. The journalist will also contact the Governor, providing the Governor with an opportunity to establish the journalist’s credentials and the ambit of the interview. A pre-recorded interview would then take place at an agreed time thus allowing the prison authorities to listen in and raise concerns prior to broadcast. This will provide the prison authorities with similar opportunities to scrutinise the content of communications with the media as are available when prisoners communicate with the media by post. Mr Hirst would not seek in any telephone interview to include any matter which could not be included in a written communication (we refer you to Standing Order 5 para.34).
We would point out that rights enshrined in the European Convention on Human Rights are intended to be practical and effective. In order for our client to be able to exercise his right to freedom of expression by participating in a radio programme on prison issues, it would be necessary to ensure that any request by him to do so would be dealt with promptly. Broadcasters, who often report upon issues arising at very short notice, operate on strict deadlines and timetables. It is essential, if our client’s right is to be effective, that applications by him to the Governor would ordinarily be dealt with on the same day they are made, as is the practice generally in relation to applications to the Governor on any issue”.
“We believe that the arrangements outlined above would be practical and workable. We would be happy to canvass any reasonable suggestions for their improvement. There is no reason to believe that interview requests would be made on a very frequent basis or that the proposed arrangements would otherwise result in an unduly heavy administrative burden for prison staff. Mr Hirst’s position is unusual, in that he has contacts with the media and a role as spokesman through the Association of Prisoners. There will be few other inmates in a similar position, whose views would be sought by reputable journalists. How the arrangements work in practice can be kept under close review.”
“The Secretary of State appreciates that broadcasting has a short turn-around period and that your client is anxious to be able still to make a contribution. It is the view of my client that corresponding in writing can enable your client to meet the timetable.
The time which would necessarily be taken for someone to scrutinise any tapes, make any necessary alterations and for a final version to be agreed would in fact be no shorter than for your client to write down his views and send them for inclusion.”
The relevant legislative provision
“The Secretary of State may make rules for the regulation and management of prisons…..and for the classification, treatment, employment, discipline and control of persons required to be detained therein”
That power is exercisable by statutory instrument: section 52. The rules relating to telephone calls, correspondence and visits are contained within various regulations, Prison Standing Orders and Prison Service Orders.
“Telephone calls by prisoners not subject to routine listening other than calls to their Legal Advisors or the Samaritans may be selected for listening on a random basis provided the Governor is satisfied it is necessary and proportionate in the interests set out in Prison Rule 35(A)(4)…. The percentage to be listened to must be no higher than is at the time thought necessary in these interests. A typical percentage will be no higher than five percent but the proportion may be increased temporarily if this is necessary: for example where there is evidence of widespread abuse of the telephone privilege for the illicit purposes set out in 36.46 above, leading to a serious threat to the good order of the prison”
“Prisoners must not make calls to the media if it is intended, or likely, that the call will be used for publication or broadcast; they may make a written application to do so, but permission will only be granted in exceptional circumstances. Prisoners should normally communicate with the media by written correspondence, subject to the provisions of SO 5B, paragraph 34(9). Before an interview by phone can be allowed, the Governor must be satisfied that the call would be for a legitimate purpose, for example bringing to light a miscarriage of justice, which could not be satisfied in a written communication or a visit. The Governor must be entitled to consider the reason why other forms of communication are not adequate before reaching his decision on whether a telephone interview with a prisoner can take place.”
This particular version of the rule came into effect on the 5 March 2001. It will be seen that there are essentially two conditions which need to be satisfied before the discretion will be exercised in the applicant’s favour. First, the phone interview must be for a legitimate purpose; the only example actually given is to enable the prisoner to allege a miscarriage of justice, although the rule does not in terms limit the exercise of the discretion to that situation. Second, the Governor must be satisfied that other forms of communication will not be adequate. Telephone communication is seen as a method of last resort. The claimant objects that the effect of the rule in practice is far too restrictive and causes the breach of his Article 10 rights.
The significance of oral communication
“Prisoners who send letters on controversial issues relating to their circumstances or relevant public policies would therefore be excluded from the bulk of news and current affairs coverage on television and radio due to lack of ready access – until the allegations/comments could be thoroughly assessed.”
Given the short time frame which is often available, this observation does not sit happily with that of the Secretary of State in the letter of the 25 June that written correspondence still enables a prisoner to make a contribution to debates of this kind.
The legal submissions
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objects. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market:” Abrams v United States (1919) 250 U.S. 616, 630, per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power of public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnet, Constitutional Law, 3rd ed (1966), pp. 1078-1086. It is this last interest which is engaged in the present case. The applicants argue that in their cases the criminal justice system has failed, and that they have been wrongly convicted. They seek with the assistance of journalists, who have the resources to do the necessary investigations, to make public the wrongs which they allegedly suffered”.
The application of Article 10(2)
“The contours of the proportionality principle are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, fisheries, Lands and Housing 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p. 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive, the court should ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental constitutional right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
“The court accepts, moreover, that the “necessity” for interference with the exercise of the right of a convicted prisoner to respect for his correspondence must be appreciated having regard to the ordinary and reasonable requirements of imprisonment. “The prevention of disorder or crime” for example may justify wider measures of interference in the case of such a prisoner than in that of a person at liberty. To this extent, but to this extent only, lawful deprivation of liberty within the meaning of Article 5 does not fail to impinge on the application of Article 8.”
Plainly that approach to the application of the proportionality principle applies just as much to Article 10 rights as it does to the Article 8 rights under consideration in Golder.
Two potential justifications.
The implications for proportionality of the particular justification for interference.
“The consequences that the punishment of imprisonment has on the exercise of human rights are justifiable provided that they are not disproportionate to the aim of maintaining a penal system designed both to punish and to deter. When the consequences are disproportionate, special arrangements may be called for to mitigate the normal effect of the deprivation of liberty.”(para 58).
“I accept the submission of Mr. Howell that, in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual’s rights?……
At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?”
“It is plain that in general terms the objective of preventing crime and disorder is sufficiently important to justify limiting a fundamental right, and that deportation of those convicted of serious criminal offences (especially drug trafficking offences) is a measure that is rationally connected to that objective. The issue in such a case is not whether there is a less restrictive alternative to deportation as a means to achieve the objective. The sole question is whether deportation has a disproportionate effect on Mr Samaroo’s rights under Article 8.”
“…the function of the court in such a case as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr. Samaroo’s right in respect for his family life on the one hand and the prevention of crime and disorder on the other. In reaching its decision, the court must recognise and allow to the Secretary of State a discretionary area of judgment.”
“As Parliament has the responsibility for deciding what shall be the consequences of conviction by laying down the powers and duties of a sentencing tribunal or other body it necessarily follows that lines have to be drawn, and that on a subsequent examination a case can be made in favour of the line being drawn somewhere else, but in deference to the legislature, courts should not easily be persuaded to condemn what has been done, especially where it has been done in primary legislation after careful evaluation and against a background of increasing public concern about crime.”(para. 20).
Is the limitation on telephone contact with the media a part of the sentence of imprisonment itself?
“ The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects the prisoner’s right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present case is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil.” (Italics added).
Their Lordships in that case rejected the view which had been expressed by Kennedy LJ in the Court of Appeal that the denial of the right constituted an element of the punishment of imprisonment.
“On considering the speeches as a whole, however, I have concluded that they recognised that a degree of restriction of the right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of a prison, but as part of the penal objective of deprivation of liberty. How far freedom of expression could justifiably be restricted was a question of proportionality.”
The justification for the policy.
“The Commission does not consider that the distress which the victim or their families may experience necessarily justifies the scope of the restriction which goes so far as to prevent the applicant from making even serious representations to the media by telephone about conviction, and irrespective of whether the calls would be transmitted.”
However, the Commission accepted the evidence of the prison authorities that it was not possible to exercise meaningful control. It also noted that the prisoner could contact the media in writing, and that his lawyers could contact them by telephone on his behalf. The defendant says that all these objections still run with the same force in this case.
The claimant’s response.
Conclusions on justification.
The status of the claimant
The appropriate relief.