Neutral Citation No:  NIQB 26
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
(a) A declaration that the decision not to allow the applicant to add his solicitor's mobile telephone number to his list of permitted telephone numbers from the prison is illegal, irrational and unfair.
(b) An order of certiorari to remove to the court and quash the decision.
(c) An order of mandamus requiring the Northern Ireland Prison Service to reconsider the decision.
(i) The decision not to allow the applicant to add his solicitor's mobile telephone number to his list or permitted telephone numbers from the prison is incompatible with the applicant's rights under the common law.
(ii) The decision not to allow the applicant to add his solicitor's mobile telephone to his list of permitted telephone number from the prison is incompatible with the applicant's rights under Article 8 of the ECHR and therefore is in breach of section 6 of the Human Rights Act 1998.
(iii) The decision not allow the applicant to add his solicitor's mobile telephone number to his list of permitted telephone numbers in the prison is irrational and unfair in the circumstances.
(iv) The applicant is entitled to expect parity with other prisoners in the United Kingdom and has the legitimate expectation that his solicitor's mobile telephone number would be added to his list of permitted telephone numbers from the prison.
(v) The decision not to allow the applicant to add his solicitor's mobile telephone number to his list of permitted telephone numbers from the prison is incompatible with the applicant's rights under Article 6 of the ECHR and therefore is in breach of section 6 of the Human Rights Act 1998.
The applicant's evidence
"I have telephoned the Madden and Finucane office looking for Mr Ferghal Shiels on several occasions about a number of separate matters and have frequently been unable to make contact. At the present time, I am taking advice in respect of an outstanding adjudication, about outstanding complaints with the Prisoner Ombudsman, about a proposed transfer to a prison in the Republic of Ireland and about issues regarding the perceived discrimination against Irish culture, language and identity within the prison by prison officers towards separated prisoners."
"This issue arose because the applicant had tried to contact me at our office unsuccessfully on a number of occasions and his inability to contact me was causing the applicant a great sense of frustration."
The respondent's evidence
"The unfortunate reality that there are persons detained in prison and persons outside of the prison estate who seek to carry on illicit activity in contravention of both the criminal law and the prison rules. These activities put the lives of both prisoners and prison staff in jeopardy." The affidavit specifically refers to the smuggling of illegal and other unauthorised articles into the prison estate as a particular issue. Reference is then made to the fact that there "is a cohort of prisoners who have stated the aim of killing persons who they perceive as manifestations of the State. In their perception this includes NIPS prison staff."
"Unmonitored telecommunication lines outside of the prison can provide a constant, covert and unassailable means of communication between criminal elements and others. In recent times prisoners have gone to extreme lengths to secrete mobile telephones into prisons in this jurisdiction for the purpose of establishing covert lines of communication with persons involved in drug trafficking or other illegal activities. Within Maghaberry since 1 January 2017, 23 mobile phones have been recovered. Where phones are interrogated, it is clear that various criminal acts are usually planned, instigated and actioned through the use of the mobile phone."
"NIPS also respects the need for prisoners to have confidential communications with their legal advisors. To this end NIPS makes the following provision for confidential legal consultation:
(a) Private legal consultation rooms.
(b) Video link.
(c) Written correspondence.
(d) Prior to and following video court sessions there may be an opportunity for prisoners and their legal advisors to have video consultation.
(e) Prisoners are allowed to register their solicitor's landline number on their telephone contact list and, following verification, telephone communications to that telephone number will be considered legal communications and will not be monitored."
"A prisoner can request that his legal representative's landline number is added to the white list and subject to the verification process for all other requested numbers this number will be authorised and contact will be possible via the prisoner phone system."
(a) Confidential communications by prisoners can be used by prisoners for a wide range of illicit reasons.
(b) There are unique threats associated with paramilitarism in Northern Ireland.
(c) Legal communications cannot be monitored.
(d) Mobile phones are impermanent, transient, transferable and vulnerable.
(e) There is no administrative mechanism that can be used to provide satisfactory and sustained verification that mobile phones are being used for the means intended or by the intended solicitor.
(f) That the risks that a mobile phone may be compromised and provide an opportunity for confidential communication between a prisoner and a third party cannot be satisfactorily mitigated.
"If NIPS were to allow mobile phone numbers to be added to a prisoner's list of telephone numbers for privileged legal communications the Prison Service would have to oversee a system that would involve dozens if not hundreds of different mobile telephones. NIPS would have no means of verifying the ownership of these telephones and they would have no power to compel solicitors to update their details if there was a change of circumstances. Put simply NIPS could not ensure that communications conducted by this means would be between a prisoner and a solicitor."
"Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but freestanding, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal advisor under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment."
"All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality."
Article 8 is engaged and any interference must of course be necessary in a democratic society, pursue a legitimate aim and be proportionate. This is referenced in a number of cases including Silver v The United Kingdom  5 EHRR 374 and Dudgeon v The United Kingdom  4 EHRR 149. Counsel also referred to the case of R v Home Secretary Ex Parte Bamber 15 February 1996 in relation to justifiable control of prisoner's communication with the media. I also bear in mind the principle that the judicial review court exercises a supervisory jurisdiction in making any determination. The respective roles of judges and administrators are fundamentally different and the decision maker as here is afforded a margin of appreciation.
Arguments made by counsel
(i) He contended that the NIPS's objections to this course were misplaced given that the mobile telephone number would be that of a solicitor and that the solicitor if the telephone was lost, misplaced or stolen could cancel the contract.
(ii) He also made the case that mobile telephones are vital lines of communication for solicitors in this type of work practised by the applicant's solicitor.
(iii) He made the point that solicitors just do not lend or otherwise give their phones to third parties because it would be unsafe to do so.
(iv) He argued that the suggestion of criminal, terrorist elements obtaining the ability to communicate with the accomplices within the prison under inappropriate legal privilege via the mobile phone is absurd.
(v) He made the point that the prisoners in England have a facility to use mobile telephones and the risks in England were marked given the threat from Islamic terrorists.
(vi) Overall Mr Moriarty argued that the decision was irrational. He also contended that it breached Article 8 of the ECHR because it was not a proportionate decision and it did not have a legitimate aim. He also argued that in view of the issues that were affecting the applicant in relation to perceived discrimination against Irish culture, language and identity within the prison it is submitted that the Prison Service was acting in breach of Article 6 of the ECHR.
(vii) In relation to the delay in bringing the application Mr Moriarty sought to distinguish Re Turkington's Application  NIQB 58 on the basis this was an on-going breach similar to the facts of Somerville v Scottish Ministers  UKHL 44. As such, he argued that the delay should not prejudice the case given that in 2014 the applicant did not have legal advice. If the court was attracted to the delay argument Mr Moriarty submitted that this was a clear case where the time should be extended given that this an issue that would arise again.
(i) He stressed that there was a context to this application. He referred to the facility for confidential legal consultations via telephone constitutes only one of a suite of positive measures undertaken by the respondent to facilitate confidential legal consultations between prisoners and their legal representatives across a number of media including private legal consulting rooms, video link, written correspondence and telephone communication with a solicitor's landline.
(ii) Mr Corkey reiterated the point that the custodial sentence interferes with fundamental rights however he contended that the issue really was the proportionality of any interference.
(iii) Mr Corkey made a point the respondent has not made out a substantial case of detriment in his affidavit. He submitted that the evidence falls short in that the applicant really refers to the views of one other prisoner rather than making a substantial case in relation to himself.
(iv) Mr Corkey also referred to the fact that the respondent is unable to undertake some of the key components of a verification process for legal telephone numbers and has no power to compel a solicitor to inform the respondent of a change of mobile or other issues in relation to it.
(v) Mr Corkey referred to the very real concerns that the respondent has regarding the desire among criminal elements to have confidential lines of communication into and out of the prison estate. In all of those circumstances Mr Corkey argued that the issue in this case was not one which could be sustained in substance.
(vi) In any event, Mr Corkey argued that the delay in this case should militate against this application succeeding. He referred to the fact that the applicant is an intelligent man, who appears to have many channels of legal communication on-going in relation to various matters and that he acts as an advisor to other prisoners.
(vii) Mr Corkey referred to the fact that the applicant challenged the policy in 2014 and he was informed in June 2015 of the outcome and nothing further was done in this case until February 2017. As such, Mr Corkey contended the delay prejudiced the respondent given that the Governor who dealt with the original decision had now retired and in any event he argued that there was no explanation at all in the applicant's affidavit as to this and so the case should founder on the basis of delay.