England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		CO/6063/2003 Royal Courts of Justice Strand London WC2
		20th October 2004

1. MR JUSTICE MCCOMBE: This is an application for judicial review brought by Mr Mark Taylor against the Governor of Her Majesty's Prison Risley. Permission to apply was given by Forbes J on 2nd February 2004. The case was originally fixed for hearing on 16th July this year, but unfortunately it was not reached on that day because of lack of time when an earlier case overran. The application was heard by me on 7th October 2004.
2. Mr Taylor is a serving prisoner at Risley. He is serving a life sentence for an offence of murder. He challenges the decision of the Governor, said to have been made on 22nd August 2003, to subject the entire population of prisoners at Risley to what is called a "call enabling" system. I will return to the definition of that term in a moment. The chronology of the matter will also require some further elucidation, and to that too I shall return.
3. The call enabling system is one designed to regulate the making of calls to recipients outside the prison by requiring the prisoner to makes calls through the use of a PIN number and the prior notification of outside numbers desired to be called. Following checks, if the numbers are approved, they are "enabled" so as to permit the prisoner to contact those numbers by use of his Personal Identification Number at an appropriate telephone point in the prison.
4. Although, as I say, the relevant decision under challenge is said in the claim form to have been taken in August 2003, the timetable, as it affected Mr Taylor, was as follows. Call enabling was introduced at Risley in July 2002. Mr Taylor was transferred to Risley in November 2002. On 21st March 2003 those advising Mr Taylor wrote to the Governor challenging the lawfulness of a blanket enabling system at Risley. The governor responded on 27th March 2003 and, after further correspondence, on 22nd August 2003 the Treasury Solicitor responded to earlier letters. No doubt it was from that last date that the date of decision as stated in the claim form was taken.
5. On the timetable indicated, it seems to me that there may well have been an objection to the lateness of these proceedings, which were issued on 12th November 2003. Such an objection was in fact raised in the Acknowledgment of Service but was not pursued at the oral hearing.
6. The scheme was that the enabled numbers permitted to each prisoner were in practice up to 20 of a domestic character and 15 of a legal character, ie calls to legal advisers. Personal numbers could be changed every two weeks, and more often on the payment of a 20p charge. There is no charge, apparently, for amending legal advisers' numbers, even at short notice. The evidence indicates that in fact Mr Taylor was allowed, as at 8th June 2004, 21 personal numbers and 15 legal numbers, pursuant to an increase permitted by the Deputy Governor in his individual case. The evidence also shows that prisoners' special requests are in this manner processed on an individual basis.
7. The alternative manner of controlling calls by prisoners is by a system called "call barring". As its name implies this system allows prisoners access to all outside numbers, save those specifically barred. I was told that the call enabling system was initially piloted in a scheme beginning in about March 2000. Judicial review proceedings were brought by four prisoners challenging that system. After certain delays, the reasons for which are not material to the present application, those proceedings were compromised. Part of the compromise was that the Secretary of State would issue a draft Prison Service Order which in the end included the following provisions. I refer to the copy that was produced at the hearing before me at pages 50 and a 51 of the bundle. That draft Order dealt with call enabling in the following terms, beginning at paragraph 3.14 of the document:

"3.14 The pinphone system offers two types of telephone services -- Call enabling and Call barring. Call enabling means that a prisoner can only call those numbers they have submitted and have been approved by the Prison. Call barring means that the prisoner can, as with phonecards, call any number except those specifically barred by the Prison.

"3.15 Separately there is a process for enabling or barring numbers on an estate wide basis and this facility is managed by Prisoner Administration Group."

8. Then 3.16 is set out under a heading "Mandatory Action" states:

"3.16 A call enabling regime will operate for the following categories of prisoners:

"Category A;

"Potential category A;

"E-list; [that means escape list prisoners];

"Prisoners charged with offences under the Protection of Harassment Act 1997 (PSO 4400 chapters 1 & 2)

"Prisoners subject to PSI 41/98 (child protection measures);

"Prisoners subject to IG 54/94 (release of prisoners convicted of offences against children under the age of 18);

"Prisoners who the police and/or Probation Service have identified as presenting a risk against witnesses and/or victims.

"3.17 In addition to the category of prisoner described in paragraph 3.16 above Governors may with the agreement of their Area Manager, place an establishment on a call enabling regime if there is an operational need to do so (eg the establishment exclusively houses sex offenders). Equally Governors may wish to place parts of the prison (eg on a wing basis or prisoner basis within a single wing or unit) on both a call enabling and call barring regime."

9. I can leave the quotation at that point. The draft Order so produced has not been finalised, but the claimant alleges that it is likely to be finalised in this form in due course. Mr Taylor argues that Risley is a category C prison; he is not on the escape list; he has not been convicted of harassment and is not subject to child protection measures. Neither is he identified as presenting a risk to witnesses or victims. Further, it is pointed out that Risley is not an establishment housing exclusively sex offenders. Accordingly it is argued that the telephone enabling system infringes Article 8 of the European Convention on Human Rights and that the interference with Mr Taylor's rights, enshrined within that Article, are not adequately justified or proportionate to the legitimate needs of prison management.
10. Miss Krause, who argued Mr Taylor's case persuasively, submits that, in the circumstances, nothing in the case of Risley justifies the adoption of a blanket enabling system outside the circumstances contemplated by the draft Prison Service Order. The draft, she submits, emerged from the earlier litigation and can be seen as the objective standard by which the system should be judged. In his witness statements Mr Taylor informs the court that he has a large family and that the movements of family members have caused him difficulties in maintaining contact under the enabling system. He refers particularly in this context to his eldest son who is a professional diver and works frequently abroad. It is argued that the system in operation at Risley detracts from reasonable communication with family members. Evidence is also adduced in the form of statements from other prisoners also relating personal difficulties in maintaining outside contacts arising from the Governor's decision now under challenge.
11. In two witness statements Mr Paul Norbury, the Governor, sets out his reasons for adopting the call enabling system at Risley. A summary can usefully be taken by quoting paragraphs 4 to 9 of Mr Norbury's first statement, which are in the following terms:

"4. My decision to place the prison on call enabling was made in consultation with the Area Manager and was made for the following reasons.

"5. First, drugs. During 2002/3 HMP Risley had the third highest prevalence of drug use of any of the 31 category C prisons in England and Wales, and, despite some earlier improvement in performance during the previous part of 2003, the average monthly MDT rate across the June 2003 to January 2004 of 28.8% positive result once more points to continuing problems in this area.

"Security intelligence reports indicate that there are several organised gangs that deal drugs in the prison. The prison is located between Manchester and Liverpool, both of which cities have high levels of drug use and drug dealing, and there is much to indicate that these have been the major sources of drug circulation within the establishment.

"7. Call enabling is a vital part of the prison's anti-drug dealing strategy. Being able to control which telephone numbers prisoners can call places substantial restrictions on the ability of drug dealers and couriers to make arrangements to bring drugs into the prison. The nature of drug dealing is such that this restriction will not be fully effective unless call enabling covers the whole prison. Drug dealers inside prison commonly use other prisoners to carry out tasks for them. To restrict call enabling to known or suspected drug dealers would be ineffective.

"8. Secondly, public protection measures. By public protection measures I am referring to measures taken to protect the public from sex offenders and from the groups listed in the final four bullet points at paragraph 3.16 of draft PSO 4400 Chapter 4. The prisoners in respect of whom public protection measures are applicable primarily, but not solely, held on one wing of the prison. Furthermore, HMP Risley operates an integrated regime, with the result that vulnerable prisoners, such as sex offenders, do mix with prisoners on ordinary location, for example in the work place."

12. The nature of the integrated regime was challenged and under dispute in the evidence in the proceedings:

"In my judgment it would be undesirable to isolate all prisoners whose cases require public protection measures. Such isolation would not assist their rehabilitation, and it would result in an impoverished regime, as economies of scale would be lost. Given the contact between public protection prisoners and other prisoners, and the ease with which one prisoner may persuade or force another to divulge his PIN number, or to make a call on his behalf, it is my considered judgment that it is necessary for the prison as a whole to be on call enabling.

"In reaching this judgment, I had regard to the importance of prisoners maintaining contacts with family and friends, in accordance with rule 4 of the Prison Rules SI 1999/728, and to prisoners' right to respect for private and family life. In my judgment, the restrictions that call enabling, as opposed to call barring, entails are comfortably outweighed by the advantages of placing HMP Risley on call enabling."

13. Mr Norbury supplemented this explanation in a second statement and I need quote only paragraph 6 from that statement, which is in the following terms:

"I should also clarify that I have at all times based my decision to place the whole of HMP Risley, save for the induction wing, on call enabling on:

"a. The need to reduce the drugs problems at HMP Risley;

"b. The need to prevent and detect crime within and outside of the prison;

"c. The need to ensure good order within the prison; and

"d. Public protection issues.

"Whilst I have referred in my first statement to administrative difficulties in operating dual regimes, ie both call enabling and call barring, my reason for not adopting such a regime is that it is administratively unworkable as it is so open to abuse. One prisoner on call enabling can readily utilize the telephone pin number of another prisoner on call barring in order, in effect, to access unlimited telephone numbers for himself."

14. Ms Krause took me to the decision of the House of Lords in R (Daly) v Secretary of State [2001] UKHL 26 in support of her argument. In particular she referred me to the well-known passage to be found in the speech of Lord Steyn beginning in paragraph 27 of the speeches, which is in the following terms:

"The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 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 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.'

"Clearly, these criteria are more precise and more sophisticated than the tradition grounds of review. What is the difference for the disposal of concrete cases?"

15. His Lordship then quotes certain academic authority and continues:

"The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenged based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom [1999] 29 EHRR 493. The court concluded, at p 543, para 138:

'The threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention.'"

16. Lord Steyn continued:

"In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."

17. I remind myself, however, that right at the end of the judgment, Lord Steyn said the well-known sentence, "In law context is everything".
18. Ms Krause invoked the decision in that case as a pointer towards the answer to the present problem. Daly's case concerned the practice of conducting cell searches and the examination of prisoners' correspondence with legal advisers while a prisoner was excluded from the cell area. It was held that the blanket policy of excluding prisoners from the cells at the time of search could not be justified, even though it might well be so justified in individual cases. The crux of the decision on the facts can be found in the speech of Lord Bingham at paragraphs 18 and 19 of the speeches. Those passages are in the following terms:

"18. It is then necessary to ask whether, to the extent that it infringes a prisoner's common law right to privilege the policy can be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime. Mr Daly's challenge at this point is directed to the blanket nature of the policy, applicable as it is to all prisoners of whatever category in all closed prisons in England and Wales, irrespective of prisoner's past or present conduct and of any operational emergency or urgent intelligence. The Home Secretary's justification rests firmly on the points already mentioned: the risk of intimidation, the risk that staff may be conditioned by prisoners to relax security and the danger of disclosing searching methods.

"19. In considering these justifications, based as they are on the extensive experience of the prison service, it must be recognised that the prison population includes a core of dangerous, disruptive and manipulative prisoners, hostile to authority and ready to exploit for their own advantage any concession granted to them. Any search policy must accommodate this inescapable fact. I cannot however accept that the reasons put forward justify the policy in its present blanket form. Any prisoner who attempts to intimidate or disrupt a search of his cell, or whose past conduct shows that he is likely to do so, may properly be excluded even while his privileged correspondence is examined so as to ensure the efficacy of the search, but no justification is shown for routinely excluding all prisoners, whether intimidatory or disruptive or not, while that part of the search is conducted."

19. Lord Bingham continues at letter G on page 1631 of the Weekly Law Report of this case in the following terms:

"The infringement of prisoners' rights to maintain the confidentiality of their privileged legal correspondence is greater than is shown to be necessary to serve the legitimate public objectives already identified."

20. Ms Krause submitted that a blanket policy to impose telephone enabling was equally incapable of justification on the facts of the present case at Risley.
21. Reliance was also placed on the decision of Elias J in R (Hirst) v Secretary of State [2002] EWHC 602 (Admin). That case concerned the prohibition in the Prison Service Order against prisoners making telephone calls to the media without the Governor's permission. Complaint was made that the prohibition infringed the claimant's rights to freedom of expression under article 10 of the Convention. The requirement of permission of the Governor before such calls were made was upheld, but the blanket policy relating to its exercise, namely not to grant permission unless the prisoner was illiterate or unable to communicate in writing, was unlawful. Ms Krause relied on paragraph 81 of the learned judge's judgment to the following effect:

"81. I accept Ms Grey's submission that it is frequently quite unrealistic to require a government department to provide empirical evidence to support each of its policies whenever they interfere with human rights. A policy is often based on a careful assessment of the anticipated effects of alternative courses of action. In this case the policies are based on the experience and knowledge of the Home Office about the working of prisons and the cast of mind and attitude of prisoners. I accept that it would be absurd to require the Government to adopt a policy which it considered to be wholly inappropriate and potentially damaging merely so that its predictions of disaster could be shown to be correct. It cannot be right to require the adoption of harmful policies simply to provide the empirical evidence needed to satisfy a court that the authority was right all along and that any interference with human rights was justified. But a reasoned judgment or assessment based on knowledge and experience is not the same as mere assertion; and, if there is experience from which evidence relevant to the adopted policy can be obtained, it seems to me to be relevant to ask whether it justifies the alleged interference. In this case, for example, there was a period until 1995 when it seems that no restrictions were imposed on media contacts by telephone and yet the potential difficulties now identified, such as frequent interviews and media abuse, do not appear to have occurred. Any policy ought in my view to have regard to this experience."

22. Ms Krause submits that the Governor's evidence in this case amounts to no more than mere speculation along the lines of the criticism of the decision taken in Hirst's case.
23. Miss Stern, who appeared for the Governor, pointed to the provisions of section 47.1 of the Prison Act 1952 and the Prison Rules 1999 made thereunder, especially Rule 34.
24. Those enactments are in the following terms. First, section 47 enables the Secretary of State to:

"Make rules for the regulation of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein."

25. The Prison Rules 1999, Rule 34, provide as follows:

"(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 [that refers to the Human Rights Convention] 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) maintaining the authority and impartiality of the judiciary; or

"(g) the protection of the rights and freedoms of any person."

26. In examining the question of proportionality, Miss Stern submitted that the court should give a wide margin of discretion to the Governor to judge the operational requirements of the prison, for which he is responsible. She referred to that element of discretion arising in Article 8 cases in a different context, namely the potential removal of an immigrant to this country from the United Kingdom and the potential separation from his family. She relied upon the judgment of Dyson LJ in Samaroo and Sezek v SSHD [2001] EWCA Civ 1139 where Dyson LJ said this at paragraph 36:

"36. In my judgment, in a case such as this, the court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State. The Convention right engaged is not absolute. The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection. It is true that the issues are not technical as economic and social issues often are. But the court does not have expertise in judging how effective a deterrent is a policy of deporting foreign nationals who have been convicted of serious drug trafficking offences once they have served their sentences. In R v Secretary of State ex parte Ali Dinc [1999] 1NLR 256 (where the applicant had been sentenced to five years' imprisonment for possession of heroin with intent to supply) Henry LJ said that, in making his decision whether under the Immigration Rules, a deportation order should be made, the Secretary of State was:

'...better placed to take a wider policy based view on the key question as to whether in the language of [the guidance known as] DP/2/93, removal can be justified as necessary in the interests of a democratic society'.

"I respectfully agree."

27. One must recall that the decision in Samaroo preceded the decision in Daly's case, to which I have already referred, and while the court, no doubt, must remain cautious in criticism of the proportionality decision made by any decision maker in a context with which it is unfamiliar, that does not excuse the requirement of the judge to question the proportionality in accordance with the principles enunciated in Lord Steyn's speech.
28. In the present case, adopting the greater intensity of review envisaged by Lord Steyn, it seems clear that the objective of the Governor's decision made under the Rules is the restriction of prisoner telephonic communication with the community at large in a manner that would be calculated to encourage or promote illegal drug use in prison and communication with the outside community in areas that would foster crime in other outside circumstances. The measures adopted here are clearly and rationally connected with that objective. It cannot reasonably be gainsaid that the ability of the prison management to control telephone communication can facilitate the prevention of undesirable communications calculated to lead to the consequences of increased drug abuse in prison and criminal activity outside it.
29. Are the means to this end deployed in this case no more than necessary and proportionate to accomplish this objective? In my view the evidence with regard to this prison (and I emphasise this prison) on this occasion (and I emphasise on this occasion) justifies the means employed. The Governor's evidence, supported by his Area Manager, testifies to the unusual intensity of the drugs problem at Risley. In my view the need to use call enabling is not reduced by the fact that drug problems appear simply to have increased since the adoption of that system. The increase cannot be attributed to the system itself. It is merely indicative of an increasing problem which requires substantial measures to tackle. Call enabling is one such measure. Its use for this reason alone would in my view be justified.
30. Further, the Governor's evidence satisfies me that a mixed system of enabling and barring would not work in this prison at the present time. It would allow the far from unreal possibility of a prisoner on enabling to obtain access to the PIN number of a prisoner on barring so as to frustrate the objective at which the enabling system was aimed in the first place.
31. Ms Krause submits that the reason based on prisoners having unauthorised access to the PIN numbers of other prisoners is put the wrong way around. Enabling is frequently appropriate in the case of sex offenders, who may be subject to bullying. It is not this type of vulnerable prisoner who is likely to be the subject of the barring system under the present draft PSO. I do not think that this is necessarily the only problem. The unauthorised access to a PIN which is subject only to barring is potentially capable of a large area of abuses. It could occur, for example, not only in cases of bullying but also in cases of collusion between prisoners of equal fortitude.
32. Conditions may not always favour such a conclusion in every case, but I see no reason to doubt the Governor's assessment of the needs of this prison at this time. This is an area in which I am satisfied that the experience of the prison service, as referred to by Elias J in Hirst's case, amply justifies the decision that was taken. Further, I consider that the imposition of the 20p charge for changing domestic enabled numbers within a 14-day period is not unreasonable. As the Governor contends, it is reasonably calculated to meet the need to prevent abusive applications to change numbers too frequently.
33. Finally, I should turn to the practical limitations on communications that the evidence indicates resulted in the case of Mr Taylor, and to a lesser extent, the other prisoners who have given evidence. It is clear that there have been limitations on communications that Mr Taylor would not have wished. However, communication by prisoners with outsiders cannot be expected to be necessarily on a level that might be expected by those at liberty. There can be little doubt that communication by prisoners with those outside prison will inevitably be subject to controls as the Prison Rules envisage. Enabling and barring are each examples of such controls. I do not doubt that the disruption of Mr Taylor's communications with family and friends has been frustrating for him at times, but his ability to communicate with these others has been extensive. 21 domestic numbers are allowed. As I suggested in argument, it may indeed be rare for the average citizen to require communication with 20 individual numbers on a regular basis over a 14-day period, although one accepts that there is an enhanced need for prisoners to maintain family contact in the circumstances in which they find themselves.
34. The evidence discloses a fully exercised facility afforded to Mr Taylor. He has been able to communicate, albeit with restrictions. The operational reasons already considered justify, in my view, the limited intrusions on private communications that have occurred in Mr Taylor's case.
35. Obviously no Governor at Risley can sit back and regard the decision in this judgment as set in stone for all time. He will have to reconsider it from time to time in the light of the well-known proportionality test already referred to. The decision today may not be appropriate in 12 months' or 24 months' or 48 months' time if other conditions prevail. The Governor will have to be prepared to justify any such decision if the question should arise again in different circumstances. Similarly, governors of other prisons will not be able to put the case of Risley as "carte blanche" for similar decisions in other institutions. It will be necessary for each governor deciding to impose a call enabling regime to be prepared to justify that decision within the Prison Rules and the appropriate provisions of any Prison Services Order and the European Convention on Human Rights. However, for the reasons indicated, the present application is refused.
36. MS KRAUSE: My Lord, the claimant is legally aided. May I have an assessment?
37. MR JUSTICE MCCOMBE: Yes, Ms Krause, you may. You did it very nicely. I think they have had very good value from you. Does anything else arise?
38. MS KRAUSE: Yes. There is an application for leave to appeal, my Lord, and I have to make it to your Lordship.
39. MR JUSTICE MCCOMBE: Yes, of course.
40. MS KRAUSE: Possibly it will take me some time to digest the judgment, but I anticipate that it will be the application of a three tier test on the Convention.
41. MR JUSTICE MCCOMBE: Ms Krause, I think you will have to excite the Court of Appeal rather than me with that. To express it more judicially, having considered your careful argument fully, I do not think that there are reasonable prospects of success in challenging what was essentially a decision reached on the facts by this Governor. Miss Grange, will you please pass my compliments to Miss Stern and thank her for her argument, which was equally as persuasive as that of Ms Krause. Thank you for attending as well.