Court of Appeal in Northern Ireland Decisions

a) a declaration that the policy of the Northern Ireland Prison Service in respect of Easter lilies, namely that prisoners shall be prevented from wearing such lilies in public parts of the prison is unreasonable, unlawful and void insofar as that policy pertains to the segregated republican wings of the prison.

b) a declaration that the order given to the Appellant on 23 March 2008 ordering him to remove his Easter lily was an order which was unreasonable, unlawful and void.

c) a declaration that the adjudication of the appellant in respect of the alleged unlawful order, i.e. the order to remove his Easter lily, is unreasonable, unlawful and void.

d) an interim injunction restraining the respondent from continuing to adjudicate upon the appellant in respect of the proposed adjudication charge until the hearing of this application and/or an interim injunction suspending the effect of any punishment imposed upon the appellant in respect of any such adjudication until the hearing of this application.

e) an order of Mandamus requiring the Northern Ireland Prison Service to consider the question of republican prisoners in the segregated wing of the prison and their wearing of Easter lilies, in accordance with all proper principles of law and practice, and taking into account all relevant factors.

(a) The impugned policy, namely the policy that prisoners are to be prevented from wearing Easter Lilies in public areas within the prison, is unreasonable unlawful and void, insofar as it relates to Republican prisoners within the segregated wings of HMP Maghaberry in that:

(i) the policy represents an undue interference with the Applicant's rights to freedom of expression, particularly his rights to freedom of expression of his political beliefs and cultural identity and the interference is not justified, in that it serves to meet no pressing social need, is disproportionate interference, is grounded upon reasons that are not relevant or sufficient, and is founded upon generalisations not supported by evidence, and the policy represents a violation of the Applicant's rights under Article 10 of the European Convention on Human Rights;

(ii) the policy represents a discriminatory policy in that it unjustly differentiates between two analogous comparators, namely the wearing of Lilies and the wearing of poppies by prisoners, on stated grounds that are equally applicable to both, and as such the policy affects (sic) are unjustified difference in treatment which discriminates against prisoners on grounds of their religious, cultural or political beliefs in breach of Article 14 of the European Convention on Human Rights;

(iii) the policy being one which operates within the ambit of the exercise of the Applicant's rights under Article 10 ECHR when it is taken together with Article 14 ECHR.

(b) The order made against the Applicant on 23 March 2008 to remove his Easter Lily was unlawful insofar as it was an application of the impugned policy, insofar as the policy itself was unlawful, for the reasons outline in paragraph 3(a).

(c) Insofar as the order to remove the Easter Lily was unlawful and based upon a policy which interfered unduly with rights under Article 10 and 14 ECHR the ongoing disciplinary proceedings against the Applicant and any disciplinary sentence imposed are disproportionate interferences and penalties interfering with the Applicant's Convention Rights.

"15. I am a person who politically holds Republican views. The Easter Lily is an important Republican symbol commemorating the 1916 Easter Rising and commemorating the Republican dead (from Wolfe Tone onwards) who have died seeking to secure an Irish Republic. I believe that it is appropriate that I as a Republican be allowed to join in this commemoration and express my identity and beliefs in this way. My wish and the wish of Republican prisoners within Roe House is that we should be allowed to wear the Easter Lily within Roe House on Easter Sunday and Monday every year. Prison provides little in the way of opportunity for political expression or engagement and this expression of political identity is particularly cherished amongst Republican prisoners."

"One of the purposes of the Compact is to help you understand what you must do to keep the rules of the prison. It does not list all the rules and if you are in any doubt about what you can and cannot do you must as a member of staff. If there is evidence that you have breached Prison Rules you may be charged and subject to disciplinary hearing."

"[9] I entertain some doubt in relation to Weatherup J's proposition that restrictions on expression on the form of the wearing of emblems are not a necessary incident of imprisonment. Those involved in the running of prisons must inevitably lay down parameters for acceptable behaviour amongst prisoners and are entitled to determine cannons of reasonable conduct and behaviour which could legitimately include the mode of attire of prisoners. The total or partial exclusion of emblems that have come to be symbols of conflict seems to me to be a legitimate exercise of prison organisation and control, the aim of prison policies of control and organisation being to prevent disorder within the prisons and to ensure as neutral an environment as possible for all prisoners and staff. For my part I would be slow to say that the Prison Service should be restricted in the exercise of its powers and duties of establishing a disciplined prison regime by giving priority to rights of self-expression which a prison service may reasonably consider to be incompatible with good prison control. However for present purposes having regard to Mr Coll's concession I shall proceed on the basis that Weatherup J's formulation of the law in Re Byers was correct.

[10] With that in mind I accept that the competing arguments of the parties are finely balanced. There is force in the applicant's argument that a prisoner in the separated regime is in a different position from prisoners in the integrated section of the prison and certainly passages in Weatherup J's judgment lends support to the argument that the restriction was justified in that case in the communal part of the prison to prevent disorder with the implication that in a separated part different consideration would or might apply. However, in Re Byers the court was not called on to address the issue which arises in this case. Weatherup J did recognise that the response to political expressions and the wearing of a symbol that has given rise to a general perception that it is a symbol of conflict must be assessed in the context of a prison and the need to maintain order and discipline in such a setting. The overall policy operated by the Prison Service was soundly based. The separated regime introduced a qualification in the prison arrangements at the prison but the Prison Service is entitled to ensure an objectively based system throughout the prison so far as possible. The Prison Service is entitled to take steps to ensure that the inroads into the overall prison system brought about by the separated regime are strictly limited. Applying the same restriction to all prisoners achieves that legitimate policy aim, leaving the prisoners in Roe House with the same rights as other prisoners to wear the Easter Lily in their cells. The Article 10 right is a right 'to hold opinions' which is not restricted by the policy and 'to receive and impart information and ideas.' The prisoners in Roe House are free to exchange and discuss political ideas. Restrictions on the right of wearing a political symbol is a minimal interference with the Article 10 right justifiable having regard to the contingencies of ensuing an objectively based prison policy. The Prison Service policy represents in my view a balanced and proportionate response and is justified for the reasons put forward by Mr Coll."

"[8] However there was another theme in McCafferty's Application, in that the Governor's affidavit was concerned with the impact on the segregated regime of the wearing of the emblem in the separated conditions. It was stated that any relaxation of the rules regarding the emblems for separated republican prisoners would have an unwelcome impact on the Prison Service policy of providing equal and common conditions for all prisoners. It was said that there would be an artificial distinction between separated and integrated prisoners if Easter lilies were permitted in the separated conditions. It was not the intention of the separated regime to allow prisoners held in such conditions to benefit from any enhancements as a result of being separated prisoners.

[9] Girvan J referred to the decision in Byers Application and noted that the thrust of the applicant's case in McCafferty's Application was that there was a fundamental difference between the position of prisoners in the integrated regime and those housed in the separated regime where there was no real contact on a daily basis with non-republican prisoners. The Prison Service argument was that the imperative was the minimising of the distinction between integrated and separated prisoners and prevention of the development of Maze style paramilitary control within the separated conditions. Further, it was stated that there was a need to protect the rights of those, other than prisoners, who may come into contact with a prisoner wearing such an emblem of conflict and to ensure a neutral working environment. This was a concern for the staff who worked in the prison rather than the other prisoners.

[10] Girvan J entertained some doubt about the proposition in Byers Application that restrictions on expression in the form of emblems were not a necessary incident of imprisonment. However Girvan J was prepared to accept that position in the light of Counsel for the respondent's concession that he should proceed on the basis that that formulation was correct. Girvan J stated that the competing arguments of the parties were finely balanced and that there was force in the applicant's argument that a prisoner in the separated regime was in a different position from prisoners in the integrated section; that Byers Application did not address the issue of separated conditions; that the Prison Service was found to be entitled to take steps to ensure that inroads into the overall prison system brought about by the separated conditions were strictly limited and that applying the same restriction to all prisoners achieves that legitimate policy aim, thus leaving the prisoners in Roe House with the same rights as other prisoners to wear the Easter lily in their cells. He concluded by stating that restrictions on the right to wear political symbols was a minimal interference with Article 10 rights and was justifiable having regard to the contingencies of ensuing an objectively based prison service."

(a) That the Learned Trial Judge erred in failing to find the following matters arguable.

(i) that the impugned policy, namely the policy whereby prisoners are to be prevented from wearing Easter Lilies in public areas within the prison, is unreasonable unlawful and void, insofar as it relates to Republican prisoners within the segregated wings of HMP Maghaberry in that the policy represents an undue interference with the Appellant's rights to freedom of expression, particularly his rights to freedom of expression of his political beliefs and cultural identity and the interference is not justified, in that it serves to meet no pressing social need, is a disproportionate interference, is grounded upon reasons that are not relevant or sufficient, and is founded upon generalisations not supported by evidence, and the policy represents a violation of the Appellant's rights under Article 10 of the European Convention on Human Rights.

(ii) that the impugned policy, represents a discriminatory policy in that it unjustly differentiates between two analogously comparable situations, namely the wearing of Lilies and the wearing of poppies by prisoners, on stated grounds that are equally applicable to both, and as such the policy affects an unjustified difference in treatment which discriminates against prisoners on grounds of their religious, cultural or political beliefs in breach of Article 14 of the European Convention on Human Rights.

(iii) that the impugned policy being one which operates within the ambit of the exercise of the Appellant's rights under Article 10 ECHR is discriminatory of the Appellant's rights under Article 10 ECHR when it is taken together with Article 14 ECHR in respect of its differential treatment of prisoners wearing poppies and Easter Lilies.

(iv) that the impugned policy interfered with the Appellant's rights to freedom of expression under Article 10 ECHR, and that insofar as the impugned policy relied for the justification of the said interference upon the legitimate aim of applying the same restriction to all prisoners, the impugned policy did not rely upon a legitimate aim envisaged or countenanced within the terms of Article 10(2) ECHR.

(v) that the impugned policy, insofar as it equated to an attempt to apply the same restriction to all prisoners, did so in such a way which imposed a differential detriment upon Republican prisoners accommodated within Roe House, when the otherwise unjustified detriment suffered by those prisoners in the exercise of their rights to freedom of expression was compared to the justified analogous detriment suffered by prisoners in general population within the prison, so that the impugned policy failed, in the context of the Article 10 ECHR rights engaged, to treat like cases alike and different cases differently in a way which was both irrational and which itself violated Article 14 ECHR by being indirectly discriminatory.

(vi) that the order made against the Appellant on 23 March 2008 to remove his Easter Lily was unlawful insofar as it was an application of the impugned policy, insofar as the policy itself was unlawful, for all the reasons outlined herein.

(vii) that insofar as the order to remove the Easter Lily was unlawful and based upon a policy which interfered unduly with rights under Article 10 and 14 ECHR the ongoing disciplinary proceedings against the Appellant and any disciplinary sentence imposed are disproportionate interferences and penalties interfering with the Applicant's Convention Rights.

"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. This Article shall not prevent states from requiring the licensing and broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subjected 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."