England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		20th February 2004

1. MR JUSTICE COLLINS: In November 2001 the claimant was sentenced to 14 years imprisonment for serious drug offences. In April 2001 he had suffered a brain haemorrhage and underwent surgery at Frenchay Hospital in Bristol. He was due to have outpatients appointments thereafter but he did not attend them. Whether that was because he was involved in his trial or whether it was the fault of the prison is not entirely clear. What is clear, however, is that he was concerned that he was not being produced when he ought to have been. There was an appointment in December to check the angiogram but he was not produced for that.
2. In July of 2002 he underwent further surgery. He was not getting, in prison, the necessary treatment which should have monitored his condition and, as I understand it, in any event he has to go to hospital every six months to undergo specialist examination and, if necessary, no doubt, treatment there.
3. Accordingly he wanted to correspond with his specialist to ensure that he was able to get the treatment and supervision that was necessary. The problem was that, although he is a Category B prisoner, he was then lodged at HMP Full Sutton with Category A prisoners. As I understand it, although he has moved from Full Sutton to Long Lartin, the situation remains the same. As a result, he is within the provisions of the general order that deals with prisoner communications in connection with those who are in Category A, or are in prisons which hold Category A prisoners. That order is PSO 1000 and chapter 36.21 of the order 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."

The paragraph continues at 36.22:

"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."

4. That wording reflects what is contained in Article 8(2) of the European Convention on Human Rights; Article 8(1) requiring that there should be no interference with a person's correspondence, but Article 8(2) indicating the circumstances in which that may happen.
5. The paragraph I have read follows from Prison Rule 34 which reads:

"(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."

Then the grounds are set out in (3) and 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."

6. The claimant, having expressed his concern about his communications with the specialist and, indeed, with any doctor who was treating him being subject to opening and reading, he received an answer from Mr Harding who was concerned with security and what was necessary in the interests of security. What he said was this:

"Having given due consideration to this subject I believe that it is reasonable for information to be passed in confidence which relates to medical issues. In order that we may achieve this, could you ensure that all outgoing and incoming mail is marked 'medical in confidence' and that incoming mail is franked with the authority's distinctive mark? Outgoing mail will be checked against the nominated address in order to determine the medical status of the recipient of that mail. Correspondence staff will be advised on that instruction."

7. Mr Harding, in a statement which has been put, tells me that he was concerned at that decision, knowing that it did not fall directly within the general prohibition that was provided by 36.12 and that medical correspondence, due to the general wording, was not something which was given any special treatment. Special treatment was given to various specified forms of correspondence, apart from that with legal advisors which was specifically covered by rule 39, and that with the Samaritans which had been regarded for some time as meriting confidence.
8. It seems that a decision has been made that correspondence with the courts, with the bar counsel, with the Criminal Cases Review Commission, with the Office for the Supervision of Solicitors, with the Parliamentary Commission of the Administration, with the Office of the Legal Services Ombudsman, with the Probation Ombudsman, with the Commission for Racial Equality and with Members of Parliament should be generally treated as confidential. It is to be noted that in the case of all those it is easy to see from the letter itself whether it is to be sent to some such body or person. It involves no consideration by the authorities as to whether the individual is indeed someone who is within a category of confidence.
9. The same would not, it is said, apply in relation to medical advisors because each individual prisoner would be a separate and distinct case and it would be necessary in each case to ensure that the individual with whom the correspondence was to take place was, indeed, someone who would properly be regarded as a person with whom confidential medical matters could properly be discussed. I will come back to the objections shortly.
10. That reply of 18th September 2002, to which I have referred, was satisfactory to the claimant. Mr Huseyin, who has represented him, accepts that it is perfectly reasonable for the approach to be taken that Category B prisoners in an unit which includes Category A should be subject to the same restrictions as apply to Category A in relation to correspondence. He recognises that the prison has a right, and indeed one might say a duty, to ensure that a prisoner is kept properly in prison and is not indulging in any attempts to escape or any criminal activities which could be furthered by correspondence which was not able to be read.
11. He does, however, make the point here that this was a prisoner who was known to be suffering from a serious medical condition -- indeed, it is properly described as a life threatening condition -- who had had surgical treatment and was undergoing, or needed to undergo, further treatment by specialists outside the prison. In those circumstances, correspondence with those specialists, or other medical practitioners who were directly concerned with his treatment, was not only reasonable but also was correspondence which he should be able to engage in without it being read by anyone. Indeed, after that decision there was some such correspondence and it is accepted, as I understand it, that the claimant did not in any way seek to abuse the concession that had been given.
12. However, Mr Harding was concerned, as I have said, at that decision and decided that he should seek further advice about it. He was, as I understand it, advised, and independently agreed with the advice, that his original response was not appropriate. What was then done was to devise a slightly different approach but an importantly different one from the point of view of the claimant. This change of approach was communicated in a letter of 28th November 2002 and was addressed to the claimant's solicitors. After an introduction, and reference to his previous letter of 18th September -- in fact the letter was dated 18th August but it is accepted that was an error -- what he said was this:

"I have been advised that this response was inappropriate and that it is necessary to examine such mail for illicit enclosures. In order to satisfy the medical confidentiality of the content of this type of correspondence I am advised that the appropriate avenue would be to direct the mail, unopened, to the medical officer of the prison. He will examine the content of the envelope in order to ascertain its medical status and then reseal the correspondence for issue direct to Mr Szuluk.

Outgoing mail should be sealed by Mr Szuluk and will be passed to the Medical Officer for examination to ascertain its medical status it will then be resealed by the doctor and sent to its intended destination."

13. This, the claimant felt, was wrong. The point that is, as I understand it, most particularly relied on in relation to it is that he was concerned, and he might hereafter be concerned and understandably so, as to whether he was being properly monitored or properly treated, if any treatment was necessary, whilst in prison. In order to allay his own fears and concerns, he wanted to be able to corresponded directly with his specialist and to raise matters which might be regarded by the Prison Medical Officer as critical of him.
14. He was not in a position to make any complaint; indeed he was not desirous of making any complaint as such, but he did want to know, and would in the future almost certainly want to be reassured, that what was happening to him in prison was not adversely affecting his condition. In those circumstances, it inhibited him if he knew that his correspondence with the outside doctors would be read by the Prison Medical Officer whom, at least by implication, he might seem to be criticising. That could have the result of breaking the relationship which otherwise should exist between doctor and patient. That relationship, of course, is compromised to a considerable extent by the fact he was a prisoner and the Medical Officer was a Prison Medical Officer.
15. Nonetheless, for a Prison Medical Officer, the fact that he is a doctor must obviously prevail. Furthermore, it is said that to make the Medical Officer responsible for determining security, in the sense of being the individual who had to look at the correspondence, was yet further to compromise his position as a medical practitioner with a duty of care owed to the prisoner in question.
16. Most particularly, the claimant should be able, so far as he could, to discuss his concerns and to know whether there were any proper concerns to discuss with the Prison Medical Officer. Perhaps he ought to ask his specialist, in an appropriate case, to write a letter to the Prison Medical Officer, having discussed with him in advance whether there was any substance to the complaints. So one can see from the claimant's point of view that he was indeed concerned at the change of approach and that he did regard it, and understandably in my judgment, as a constraint which should only exist if justified.
17. Mr Huseyin has referred me to the decision of the European Court of Human Rights in Z v Finland [1997] 25 EHRR 371. That was a very different case on the facts and it involved the disclosure of medical records of an individual in circumstances into which I do not need to go. He referred me to observations in paragraph 95 of the judgment of the court at page 405. This was in connection with a consideration of whether Article 8(2) could properly be relied on and what should be the approach. What the court said was this:

"In this connection the court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection those in need of medical assistance may be deterred, when revealing such information of a personal and intimate nature as may be necessary in order to receive the appropriate treatment, from seeking such assistance thereby endangering their own health but, in the case of transmissible diseases, that of the community. The domestic law must therefore afford appropriate safeguards so there may be no such communication or disclosure of personal health data as may be inconsistent with the guarantees of Article 8 of the Convention."

18. That is something which, no doubt, could be material if one were considering disclosure to prison officers but, as Mr Kovats points out, the suggested arrangement is one where the only disclosure of the medical information will be to the Prison Medical Officer, and he will have it anyway. He must have it because, unless he has the full information about the claimant's condition, he will not be able to treat him and supervise him properly whilst he is in prison. So this case does not concern directly the disclosure of medical information or medical records of an individual.
19. It is a case which is concerned with the restriction on the right to correspond. Of course, the fact that this is a situation where the correspondence is with the medical practitioner is a highly relevant consideration because normally, as is recognised, such communications will be treated as communications which ought not, unless essential, to be read by anyone other than medical practitioners. It is, of course, to be noted that what is proposed does, itself, albeit not to the extent that the claimant wishes, veer from the requirements in 36.21.
20. It does recognise, and in my view properly recognises, that special consideration has to be given in situations such as this. But, submits Mr Kovats, it would be quite wrong, and indeed impossible, to go further and the proposal that has been made is wholly proportionate to the breach of Article 8(1). Accordingly, there is no breach of Article 8, read as a whole.
21. I am reminded, in accordance with the decision of the House of Lords in Daley, that this remains a review. It is not for me to substitute my own view for that of the defendant. It is to be noted that this is a matter which is considered by the Secretary of State in the form of those who are concerned with the running of prisons, and that they must be expected and recognised to have an expertise in what is necessary in order to ensure that both the public, and indeed the inmates, are kept safe and secure. That, of course, is a very important consideration because in this area, indeed in many areas, it is right that the court should pay the greatest respect to, and attach considerable weight to, the approach made by those who have to make the relevant decisions.
22. However, one has to look to see whether the decision in question can properly be said to fall within the spectrum of what should properly be regarded as proportionate. It is not always easy to draw the line and to decide whether, in a particular case, the proposed restrictions are beyond that which is properly to be regarded as proportionate.
23. One of the problems that is raised by the defendant, if I correctly understand the way this is put, is that it is very difficult, and indeed it creates its own problems, if special treatment is given to individual prisoners. It is normally essential that there should be a rule or a guidance which can be applied, and is seen to be applied, fairly and evenly to all individual inmates. Thus it is necessary to spell out the circumstances in which special treatment, or treatment less than that required in this case by the general direction under 36.21, can be modified.
24. The problem is to find any such workable approach in relation to what I will call broadly at the moment, medical correspondence. I have before me a statement of Mr Wayne Coonerty who is Manager G in the Prison Service Headquarters in London, and Deputy Team Leader in the Security Policy Unit. He informs me that correspondence other than that covered by legal privilege may require confidential handling and policies have been put in place to protect the confidentiality of such correspondence. I have already identified the various bodies or persons who fall into that category.
25. In paragraph 10 he tells me that an instruction is currently being drawn to reflect the amendment which is needed by the guidance in relation to the individuals I have referred to, and consideration is being given to include correspondence with the Health Ombudsman as well. This will allow medical related complaints to be dealt with confidentially if the prisoner is not satisfied that the matter is being dealt with by the prison service. Such an arrangement would come into effect when the internal complaints process has been exhausted.
26. As Mr Huseyin rightly points out, that really is not the issue so far as this case is concerned because it is not a question of raising a complaint, or of even wanting to raise a complaint. It is the question of being able to correspond to ascertain whether there is proper treatment and try to do something about it if there is not. If it transpires that there is not, a complaint in due course may be made. That is not, as I say, what is in issue at the moment.
27. Mr Coonerty continues in paragraph 12 to tell me that policy does not allow correspondence to and from external health authorities or health bodies to be treated as confidential because there is a greater potential for abuse than currently exists where prisoners are in correspondence with either a legal representative or body covered by the confidential access proceedings. He continues in the next paragraph:

"Extending confidential access to this type of correspondence would be extremely difficult to resource in prisons given the potential number of NHS trusts/medical centres and other health bodies that prisoners may want to correspond with, and the extra validity checks this would require from prison staff. While there are established, manageable protocols in place to deal with, say, correspondence with MPs acting in a constituency capacity, where letters have to be sent to and received from the House of Commons, this would be difficult to implement to general medically related correspondence to doctors, which would potentially be sent to and received from numerous addresses around the country. Not only are there a great number of medical bodies, there is no clear definition of medical correspondence. Would only registered medical practitioners be covered? What about correspondence with non clinical members of health authorities? Or with physiotherapists? Or counsellors? Or practitioners of alternative medicine? Much staff time would be taken up with arguments on such points. And it would take up even more staff time to verify every medical body or practitioner proposed by a prisoner. Furthermore, many potential senders of medical correspondence may not have franking machines or stamps to put on envelopes to enable the prison to ascertain the veracity of the sender. By way of contrasting example, a House of Commons frank on the envelope enables confidential access correspondence to be recognised at a glance."

28. I fully understand the force of those concerns and I bear in mind, of course, Mr Kovats' submission based on the Strasbourg decision in Silver and Others v UK [1983] 5 EHRR 347, which was a case which specifically dealt with prisoners' correspondence. What the court decided was that restrictions were justifiable so long as the law was sufficiently precise to enable the individual to regulate his conduct, and that orders and instructions could be properly taken into account. It was not possible to go outside, in restricted fashion, what was laid down without giving due notice and dealing with it in a proper fashion.
29. Be that as it may, the paragraphs to which I have been particularly referred are 97 and 98. It deals with general principles of interferences necessary in a democratic society. What the court said was that there was a degree of margin of appreciation but the Strasbourg court must give the final ruling on whether the restrictions were compatible; and the codes necessary in democratic society meant that to be compatible, interference must correspond with a pressing social need and be proportionate. Regard had to be paid to the ordinary and reasonable requirements of imprisonment and some measure of control over prisoners' correspondence was called for.
30. It is clear and it is accepted that the Prison Rules enable the Secretary of State to lay down conditions and to exercise a discretion in deciding what can and what cannot be done in individual cases. It seems to me that the problem here is a reliance on a general provision as opposed to a consideration of the particular needs of an individual prisoner.
31. Mr Kovats has, as I have indicated, submitted that there is a real problem in dealing with an individual case of a prisoner if special treatment is thereby given. Of course, the fact is that even on the proposal which is put forward there is special treatment being given. It is not so special as that which the claimant contends is appropriate, but it is nonetheless special and it is not within the normal provisions of 36.21. It is a recognition that in the special circumstances of this individual's case, different considerations may apply.
32. As it seems to me, Article 8 looks to an individual's human rights and one has to ask oneself whether that individual's human rights, in any given circumstances, are or are not breached. 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. Mr Huseyin, what other relief would you say is appropriate?
38. MR HUSEYIN: Formally, it would be remitted to be considered in the light of the court's judgment.
39. MR JUSTICE COLLINS: Rather than a quashing order, I would have thought, come to think of it, a declaration may be more appropriate. What do you think, Mr Kovats? A declaration that the decision of 18th November is not proportionate and that, I suppose, the decision of 18th September is?
40. MR KOVATS: Well, my Lord, we would have some concern about that. It is not clear to us whether or not the result of that is that the Prison Service is bound to apply to Mr Szuluk that which was set out in --
41. MR JUSTICE COLLINS: I think that is what I am intending to do. The appropriate course in his case is that of the original decision of Mr Harding. If he abuses it in any way he will, of course, lose the privilege, if that is the right way of putting it, but for the time being I think it should go back to that.
42. MR KOVATS: The reason we are concerned about that is, as your Lordship is aware, Mr Szuluk has now changed prison. The Governor in Long Lartin did not make the same decision that Mr Harding made.
43. MR JUSTICE COLLINS: I understand. Perhaps the best thing is to go to the Governor to make a decision in accordance with the principles of this judgment.
44. MR KOVATS: My Lord, we would certainly not want to go further than that.
45. MR JUSTICE COLLINS: Mr Huseyin, is that an order you can accept?
46. MR HUSEYIN: I think that is what I originally asked for in the application.
47. MR JUSTICE COLLINS: That is the best way of doing it. You are absolutely right, Mr Kovats. Whether that is in the form of a declaration that the Governor of whatever prison he is housed in should make a decision on this issue in accordance with the principles set out in this judgment, because I recognise that he may move to other prisons.
48. MR HUSEYIN: My Lord, there is an outstanding claim for damages for unjustified breach of human rights under Article 8. Can I make a concession in relation to that? I cannot point to a specific adverse consequence, except for one that you know of, of receipt in correspondence. I accept I cannot.
49. MR JUSTICE COLLINS: I think I have the approach which is that your success in this is quite sufficient recompense in all the circumstances. Therefore, I do not think that this is an appropriate case for any award of damages.
50. MR HUSEYIN: My Lord, Legal Aid assessment.
51. MR JUSTICE COLLINS: And as you rightly can see, there is no damage that one can put one's finger on.
52. MR KOVATS: My Lord, we would ask for permission to appeal on the ground that, notwithstanding the careful wording of your Lordship's judgment, the approach of the court has, in reality, been too interventional which will cause difficulty in other cases, and further, that with the greatest of respect, your Lordship has not recognised the difficulties that are involved in treating one prisoner differently from others.
53. MR JUSTICE COLLINS: What is that?
54. MR KOVATS: My Lord, this is going back to the exchange we had this morning. He has been treated differently from paragraph 36.21. There is no evidence as to whether or not other prisoners in a similar position would be treated differently or not.
55. MR JUSTICE COLLINS: I have no evidence that persuades me that they should not be treated in the same way if they make, in similar circumstances, an application. I made it clear that this is a very exceptional case and it is because he is suffering from a life-threatening condition and has those inevitable concerns. I would not want it to be thought it would go any further. This is not a precedent for anything.
56. MR KOVATS: Our concern is precisely that it will be argued.
57. MR JUSTICE COLLINS: Who ever tries to argue it will know what I have said.
58. MR KOVATS: My Lord, with the greatest of respect, it may be that some other prisoner may be able to say there is no material difference between his case and that of Mr Szuluk and wonder why should it be a life-threatening illness to qualify.
59. MR JUSTICE COLLINS: Maybe you are right. Maybe such a prisoner would have a jolly good right to argue. It would depend upon the original circumstances.
60. MR KOVATS: Coming back to the original reason to seek permission to appeal, if we do feel it is appropriate for the Court of Appeal to look at this, the level of intervention made by the court should be subject to consideration by the High Court.
61. MR JUSTICE COLLINS: You would have to persuade the Court of Appeal.
62. MR HUSEYIN: My Lord, that leaves the question of costs. I know that this is a question of costs going from one public body to another --
63. MR JUSTICE COLLINS: No, you are entitled to your costs unless Mr Kovats can persuade me there is a good reason why you are not. I do not suppose he will. Are you Legally Aided?
64. MR HUSEYIN: We are.
65. MR JUSTICE COLLINS: You will have the legal order for detailed assessment.
66. MR HUSEYIN: I am grateful, my Lord.
67. MR JUSTICE COLLINS: Thank you both very much.