RD, R (on the application of) v Secretary of State for the Home Department

The applicant appellant as he now is, Mr Richard Davison, is currently serving a term of twelve years’ imprisonment in one of Her Majesty’s prisons. He has conducted a long campaign on a matter that affects him and other prisoners: the charging structure for the making of telephone calls from those prisons. The structure that is objected to can be shortly stated.

The telephone service is provided under a contract between BT and the prison service. A prisoner will pay 10p for the first 55 seconds of any call to a United Kingdom landline and 1p for each 5.5 seconds thereafter. Calls to mobile phones are significantly more expensive, but I did not understand that to be an element of the complaint. The complaint rather is based on a comparison with the charges for landlines calls from public telephone boxes. In those cases a minimum charge of 30p is imposed for any call of up to 15 minutes, and thereafter 10p for each period of 7.5 minutes. This means that calls by a prisoner that last for no more than 2 minutes and 44 seconds are cheaper than from a public box, but longer calls will be more expensive than public box calls by amounts significantly increasing as the call increases in length. For instance, a 15 minute call from prison costs £1.64, or more than five times the public box rate.

Mr Davison submits that the telephone is an important factor in his keeping in touch with his family and the cheaper shorter calls are inadequate for that purpose. The rate for longer calls is, he says, unfair when compared with the costs of such calls from a public box, and because of the low income of prisoners is a significant interference with their ability to communicate with their families. He initially raised that complaint with the prison ombudsman. The deputy ombudsman upheld the complaint in a detailed determination of August 2006. She pointed to the importance of phone contacts in a population that is known to have difficulties in letter writing and where recipients of letters from prisoners may themselves not be good correspondents. She saw that as part of the principle stated in the prison rules that prisoners should be encouraged and assisted to maintain relations with their families. In the deputy ombudsman’s view that aim should be promoted in accordance with what she described at paragraph 65 of her determination as “an important principle that prisoners should not overall pay more for their calls than do the general public”. She accordingly upheld Mr Davison’s complaint and recommended that 1) the prison service should reopen negotiations with BT over the costs of telephone calls with a view to reducing the tariff, so that prisoners are not penalised for making longer calls; and 2) where in future any contracts or services that affect prisoners or their families are being procured, there should be what was described as an impact assessment, such as had not been undertaken in the present case, to be used by the prison service as a factor in its negotiations.

The prison service accepted the second recommendation, albeit, I have to say, in a somewhat muted terms. It did not accept the first recommendation, saying that any structure involved issues about cross-subsidies; there were positive benefits in charging a cheaper rate for short calls, for instance in particular calls that in the event connected only with an answering machine or were wrong numbers; and that further accommodation of long calls could only be at the expense of those making shorter calls.

There followed a series of inconclusive exchanges in which the prison service said that, on the current pattern of telephone calls, prisoners were not, as a category, worse off than ordinary members of the public; and the ombudsman suggested that current use patterns were an unreliable guide because they were necessarily influenced by the current pricing structure.

Faced with that lack of progress, Mr Davison launched the present judicial review proceedings. It is of some importance to see how the case is put in the grounds of challenge and what relief was originally sought. The case proceeds by the following steps: 1) Limitations placed upon telephone calls made by prisoners ‘engage’ Article 8 because they restrict the ability of the prisoner to maintain contact with his family, relying in this respect on Klamecki v Poland (No 2) [2004] 39 EHRR 7; 2) [and I quote here verbatim from paragraph 4.2.2 of the grounds which has been the subject of some discussion this morning]:

“…the charging regime is not such a severe limitation that it violates article 8”

However, the ground went on, Article 8 was violated because it has not been established that the restrictions were imposed for a legitimate reason. They were imposed because the prison service took the view that prisoners would be better served by this charging regime, but no research was done to demonstrate that that was true; 3) Article 14 is also engaged because, in respect of charges for phone calls, serving prisoners -- a relevant class or category -- are treated differently from the rest of the community; 4) the relief sought was therefore a mandatory order that the prison service should reopen negotiations with BT with a view to reducing the costs of telephone calls to prisoners so that the claimant is not penalised for making longer calls, or further or alternatively that the claimant be paid compensation for the violation of his rights.

The application for permission came before Sullivan J on paper. He doubted whether Article 8 was engaged at all, in view of other means of maintaining contact, such as correspondence, visits and short telephone calls. But he pointed out that, in any event, the interference had been conceded in the grounds not to be so severe as to amount to an infringement with the claimant’s Article 8 rights. As to the complaint of lack of legitimate reasons, Sullivan J said that the prison service’s belief that prisoners were better served by the current regime might be open to argument, but it was an entirely rational justification for the practice.

Mr Davison then applied in court to Mitting J, whose judgment is the judgment under appeal. The judge pointed out that the claim for a mandatory order was impossible, but he accepted the argument of Mr Southey, then as now acting for Mr Davison, that if a breach had occurred it would be appropriate for the court to make a declaration to that effect. But the judge thought that it was unarguable that on the facts of the case there had been an infringement of Article 8 rights. The issue was one of fact and degree and, taking into account the other means of communication with his family that were available to Mr Davison, the limits on long calls impose no sensible restriction on rights. Mr Davison now renews his application for permission to this court, seeking to support the grounds for judicial review that I have already set out.

I have no difficulty with the proposition that Article 8 is engaged by an issue in relation to phone calls by prisoners to their families, if by that is meant that decisions or rules in relation to communication with the prisoner’s families are a category of decision or event that can potentially give rise to a breach of Article 8. That, I would think, would be only common sense and is supported, albeit in very broad terms, by Klamecki v Poland cited by the applicant. Of much more difficulty is whether a question about availability of telephone calls in itself engages Article 8 and whether, if it does, the facts of the present case demonstrate an interference with Mr Davison’s family life that is sufficiently severe to amount to an actual breach of Article 8.1. In both respects, the European authorities put before us are distinctly unhelpful to Mr Davison.

Mr Southey in his skeleton argument argued, and repeated before us, that Klamecki suggests that any limitations imposed on the ability of a prisoner to maintain contact with family and friends must be justified under Article 8.2. For that he relied on paragraph 144 of the determination of the European Court. I do not think that the case comes anywhere near to supporting a submission as broad as that which Mr Southey makes, and has to make, to bring this case within the ambit of Article 8. Klamecki was directed, and the paragraph to which we refer is directed, on limits on the institution of visits in prisons and the limitation of visiting rights. There is no indication that it goes, in general terms, more broadly than that. Secondly, the case itself was a very singular one. For reasons that were connected with his forthcoming trial Mr Klamecki was for a year forbidden all personal contact and all uncensored letter contact with his wife. Small wonder that that element in the prison regime was thought to need justification. But it is not only impossible as a matter of construction or approach to try to translate that decision to our facts; it is also contrary to other authority.

That is indicated by an admissibility decision brought to our attention by Mr Southey, McCotter v United Kingdom [1992] 20479/92, where Mr McCotter was a citizen of the Irish Republic serving a seventeen-year sentence in England. He complained that the location of his imprisonment interfered with his ability to be visited by and have contact with his family in Ireland, as no doubt it indeed did. The European Court of Human Rights in this admissibility determination recognised the impact of detention on family life in a passage quoted to us by Mr Southey, which said this:

 “…in the context of prisoners or other persons who are detained, the concept of ‘family life’ must be given a wider scope than in other situations.  Prisoners generally have limited means of contact with the outside community and of maintaining relationships with family members.  ‘Family life’ for prisoners is inevitably restricted to visits, correspondence and possibly some form of communication such as telephone calls.  Emotional dependency between for example, parents and adult children, or siblings is even enhanced in these circumstances.” 

It is quite true that the European Court of Human Rights then went on to say that the particular complaints in that case fell within the “scope” of Article 8.1. But it then held that only in exceptional circumstances will detention away from home infringe Article 8. Therefore, as the Commission found:

“Having regard to the above circumstances, the Commission finds that the decision of the United Kingdom Government to refuse permanent transfer arrangements to Northern Ireland discloses no lack of respect for the applicants' family life within the meaning of Article 8”

That is the language of Article 8.1, which speaks of respect for family life, not of Article 8.2. The reason the application in that case was held to be manifestly inadmissible was that it did not fall under Article 8.1. If Mr Southey were right in his broad submission the European Court of Human Rights would have been obliged to go on to an Article 8.2 inquiry, because Article 8 was “engaged”.

Coming closer to the facts of our case, the European Court of Human Rights said in paragraph 92 of its judgment in AB v the Netherlands  [2003] 37 EHRR 48 that:

“In respect of telephone facilities, the Court considers that Art.8 of the Convention cannot be interpreted as guaranteeing prisoners the right to make telephone calls, particularly where the facilities for contact by way of correspondence are available and adequate.”

In the light of that statement -- and bearing in mind that it is   our  duty  to  keep  pace with the Strasbourg jurisprudence but  not  to  do   more (per Lord Bingham of Cornhill in R (Ullah) v the Special Adjudicator [2004] 2 AC 323 at paragraph 20) -- I doubt whether it is even open to us to investigate further the arrangements of telephone calls through the medium of the application of Article 8. It is quite true that, in paragraph 93, the European Court of Human Rights went on, as Mr Southey pointed out, to say something about the compatibility of the arrangements in fact made for telephone calls with the requirements of Article 8.2. But those observations about the restrictions on the telephone facility that in that case was in fact provided appear to have been made on the hypothetical basis -- not conceded by the court and inconsistent with what it had said in paragraph 92 -- that the question arose at all.

These doubts may be academic, because it would appear that it is, as I have said, in any event conceded that the actual arrangements that Mr Davison complains of do not violate Article 8. Mr Southey told us that that concession should not be read in quite the literal terms that Sullivan J and, on reading it, myself, were minded to adopt. But, in any event, it was a correct concession.

Recent guidance from the House of Lords tells us that, in the case of acts or events that do not destroy the substance of family life, an interference must be of some seriousness before it can be said to fall in the ambit of Article 8 at all. One needs to have regard in this area to what is, if I may presume   to   say   so,   the important survey of the jurisprudence contained   in   the   speech   of   Lord Walker   of   Gestingthorpe in M v The Secretary of State for Work and Pensions [2006] 2 AC 91, and in particular his conclusion in paragraph 83. The concession that the applicant appeared to make in this case was well in line with that guidance. That guidance is also inconsistent with any suggestion that, on the basis of Klamecki alone, a general obligation of the sort that Mr Southey contended for can be found in the jurisprudence.

As we have seen in the grounds -- but not other than for a short period before us -- Mr Davison went on to contend that, although objectively what had happened to him did not infringe Article 8.1, nonetheless, that Article had been violated because the restrictions had not been imposed for rational reasons. That contention, I have to say, was impossible. If the objective situation complained of does not infringe the applicant’s Article 8.1 rights, no obligation falls upon the respondent to justify that situation. Justification is the business of Article 8.2, which does not come into play unless there is a breach of Article 8.1. In the grounds at least Mr Davison relied for this contention upon observations in the House of Lords in SSHD ex parte Daly [2001] 2 AC 532. That case shows clearly that the House and, more particularly, Lord Steyn, whose speech was relied by Mr Davison, assumed that a breach of Article 8 had occurred and concentrated on whether that could be justified; which is the stuff of Article 8.2. For those reasons, therefore, the complaint under Article 8 fails.

Under Article 14 Mr Davison argues that 1) Article 8 is “engaged” as Mitting J had put it, and therefore the case sufficiently falls within the “ambit” of another Article or Convention as to engage Article 14; and 2) Mr Davison’s status as a prisoner places him in a category, in respect of which differential treatment from the rest of the community will amount to discrimination against a particular class of person.

At one time at least some courts in England and Wales were minded to take a very broad approach to what constituted the ambit of particular articles of the Convention. But the House of Lords has more recently, and critically of earlier domestic jurisprudence, required a more limited approach based upon the distance of the conduct complained of from the core values that are said to be engaged. See M v Secretary of State (already cited) at paragraph 4, per  Lord Bingham of Cornhill, and at paragraphs 59-60 per Lord Walker of Gestingthorpe. It will be noted from those paragraphs that Lord Walker particularly urged caution when considering the ambit of Article 8 -- the Article with which we are concerned. That approach emphasises that an exercise of judgement is involved. A domestic court, in making that judgement, should be particularly influenced by any indications that can be drawn from the Strasbourg jurisprudence. Mr Southey pointed to the statements in McCotter, already quoted, as to the sensitivity of the European Court of Human Rights to the impact of imprisonment on family life. But, in the particular circumstances with which we are concerned, we are confronted with the strong statement of that same court in AB v the Netherlands that I have already cited, that places issues about telephone calls entirely outside Article 8. I consider therefore that a question such as the present (which, it should be emphasised, addresses only telephone calls and not any wider issues affecting prisoner’s family life) cannot be held by a domestic court to fall within the relevant ambit of Article 14.

If that is wrong, the question has to be addressed of whether Mr Davison is in an analogous or relevantly similar position to other persons (that is, users of public phone boxes) who are treated differently from him in regard to phone charges. Mr Davison relied heavily on the admissibility decision in Shelley v United Kingdom App no. 23800/064 January 2008, from which the statement of the effect of Article 14 that I have just set out is taken. Mr Shelley complained of discriminatory treatment of prisoners, in that within prisoners there was not available the needle exchange programmes that were recognised in the community as efficacious in limiting the exposure to infection of intravenous drug users. The European Court of Human Rights accepted that, as the issue was one of health, it fell within the ambit of Article 8, and rejected the United Kingdom Government’s blanket argument that prisoners could not claim to be in a comparable position as in the community. The European Court of Human Rights continued:

“Whether or not the applicant prisoner can claim to be in an analogous position [to persons in the community] will therefore depend on the subject-matter of the complaint. In this case the applicant complains of different standards of health care being applied in prison. The Court would observe that the European Prison Rules… and the domestic prison regulations themselves provide that the health care in prison should be the same as that in the community. For the purposes of the present application, therefore, the Court is prepared to assume that prisoners can claim to be on the same footing as the community as regards the provision of health care.”

There is some artificiality in applying that observation to our case, which is concerned with an issue that, on the view expressed above, does not engage Article 14 at all. However, it must be plain -- and it is the view of the European Court of Human Rights as expressed in AB v the Netherlands – that, in the particular respect of the use of the telephone, and in signal contrast to expectations of healthcare, prisoners cannot claim to be in a relevantly similar position to persons who are free in the community. The claim therefore fails to meet either of the preconditions for consideration of the claim under Article 14.

Neither the Article 8 claim nor the Article 14 claim reaches the stage at which it is necessary to consider any justification for the arrangements made by the prison service. I would merely venture to put on record that it should not be assumed from the fact that I have not addressed that issue that I am in any way persuaded that no justification could be provided. In my respectful view, there was much force in the opinion expressed by Sullivan J that, while there could be and has been a good deal of argument about how to deal with a problem the ideal solution to which is far from obvious, it was not possible to say that the prison service had adopted a solution that could not be justified. In the event, however, and for the reasons previously indicated, I would dismiss this appeal. I would also say that although the court granted permission at the start of this hearing I do not think that that course can be justified by any reason other than the management of this hearing in economic fashion. If the matter had simply been an application I would not have granted permission.

I agree entirely. I have to say I consider that this kind of case does nothing for the standing or reputation of the Convention rights. While importance is universally attached to a prisoner’s capacity to maintain family ties, this complaint about the cost of longer telephone calls does not begin to involve an actual or potential violation of Article 8 or Article 14 of the Convention, as my Lord Buxton LJ has explained. For all the reasons given by him I too would dismiss this appeal and, had the application for permission stood alone as such, I would not have granted it.

I also agree.