Bruton v The Governor of HMP Swaleside & Anor

The Claimant, Mr Edmund Bruton, is a serving prisoner at HMP Onley. He is a category C prisoner and is subject to an indeterminate sentence who continues to deny that he is guilty of the offence for which he has been sentenced. He seeks judicial review of the failure of the Defendants to comply with their duties to protect his right to privacy, confidentiality and legal privilege in correspondence and communications with his legal representatives and others.

During the period to which this claim relates, the Claimant was also a prisoner at HMP Swaleside and HMP Coldingley and the Claimant alleges that mail that was addressed to him and attracted the protection of Rule 39 of the Prison Rules or the protection of the ‘Confidential Access’ regime was improperly opened by prison staff at all three prisons.

The Claimant asserts that, as a result, he is being deterred from pursuing his rights because he worries that his mail will be opened and may be read and that consequently he is both very anxious and distressed and has lost faith in the rules which are in place to protect his rights.

In 2014 the Claimant made a complaint to the Prisons and Probation Ombudsman (‘PPO’) in respect of the opening of legally privileged mail by HMP Swaleside which was upheld in January 2015. The PPO directed an apology and that steps be taken.

Under the heading ‘Consideration and Conclusion’ the PPO records as follows:-

“24.

But our investigation has also found that Swaleside’s Censors Department were not implementing the PSI in relation to Rule 39 and Confidential Access mail. They have said in their responses to Mr Bruton, and on more than one occasion, that open Rule 39 and Confidential Access mail if it is not marked ‘Rule 39’. However, the PSI clearly states that if the mail is not marked as Rule 39 but appears to come from one of the organisations/individuals covered under Rule 39 or Confidential Access then they should be treated as such.

25.

Because our investigation has shown that Mr Bruton’s Rule 39 and Confidential Access mail has been incorrectly opened on a number of occasions we have upheld his complaint. We are pleased that Ms Arnold has already agreed to liaise with the management of the Censors Department and we are reassured that this will allow Swaleside to improve their handling of prisoners’ mail. This will also allow individuals such as Mr Bruton, to be confident that the Confidential Access mail is being handled correctly. In addition, Ms Arnold has already agreed to issue a letter of apology to Mr Bruton and we understand that a notice to staff will be issued, in which they will be reminded of their responsibilities when handling mail in line with the PSI. In the circumstances, we consider this to be a reasonable response. In his letter to the Ombudsman, Mr Bruton requested that Swaleside pay him compensation for their breaches of policy. As we can find no evidence that Mr Bruton has suffered any financial loss as a result of Swaleside’s handling of his mail, we do not consider that there is any justification for recommending compensation.

26.

A copy of this Record of Investigation and accompanying letter to Mr Bruton is being issued to the Governor of Channings Wood. A copy of the letter of apology to Mr Bruton and the notice to staff (referred to in paragraph 25) should be forwarded to Mr Woodhead, assistant Ombudsman, by 15 February 2015.”

It would appear that no effective action was in fact taken on that Report until November 2015 when the Claimant received a letter in these terms:-

“Following a complaint you made to the Ombudsman last year about having experienced on a number of occasions when your legally protected post was opened by mistake by the Correspondence Office, you should have received a letter of apology.

I am led to believe that this letter was not received by you.

Please accept this letter now, as an apology for the fact that you felt forced to write to the PPO’s office as the only recourse you felt had in this complaint.”

To my mind this letter does not apologise for opening legally privileged mail and, as counsel for the Claimant submitted, it could not be less fulsome or genuine an apology if it had tried. Moreover, it was unacceptably late; having been due by 15 February 2015.

A Notice to Staff was issued on 18 November 2015 although it is unclear where it was issued or where it was displayed. Again that was only done some 10 months or so after the PPO report and very notably it says absolutely nothing about the failure to understand and apply the relevant Prison Service Instruction (“PSI”) and therefore it too did not address a key failing identified in the PPO Report.

A further letter of apology was written in July 2016 in these terms:-

“Dear Mr Bruton

I write with regard to the investigation by the PPO in to the opening of your Rule 39/Confidential Access mail by HMP Swaleside staff.

The PPO investigation covered the period from April to December 2014. It is clear that during this period there was some confusion about the correct way to process Rule 39/Confidential Access mail. As explained at the time to the PPO, there had been staff shortages during that period, resulting in staff working in the Correspondence Department who may have been less familiar with the work, leading to mistakes being made in the opening of Rule 39/Confidential Access mail.

Please accept my sincere apologies for any distress these errors may have caused.

I would like to reassure you that, since 2014, we have made and continue to make changes to the working practices in the Correspondence Department which we consider have resulted in improvement to the systems for dealing with prisoners’ mail.

I understand that a previous apology sent to you by the prison was not in fact received by you. I am sorry that you have experienced a delay in receiving our apology. However I hope that you are reassured that we take this issue very seriously and that actively striving to improve our working practices. ”

A further Notice was issued on 4 July 2016. It notified staff of the existence of PSI 49/2011 and where it could be found and it reproduced relevant extracts of the relevant PSI.

On 30 December 2016, by which time the Claimant had been transferred to HMP Onley, a guidance sheet was prepared and issued to staff by email with laminated copies being stuck on work stations in the Correspondence Office of the prison.

In September 2014 the Claimant had made a further complaint internally within HMP Swaleside, the response to which was to the effect that any opening was in error and not deliberate and in fact, Ms Hawkes, on 25^th April 2014 asserted, worryingly and wrongly, that if a letter was not marked as being Rule 39 then there was a right to open it even though when, as was the case in respect of the letter complained about, the envelope was clearly marked that it emanated from a court. To my mind this is a clear example of lack of appropriate training.

In total the Claimant relies on 34 alleged breaches of the Rule 39/Confidential Access regime over the period April 2014 to February 2017 which have been helpfully summarised in a schedule (“the Schedule”) produced by his counsel. Of those complaints, twenty five (numbered 1-21) in the Schedule relate to the Claimant’s time at HMP Swaleside, three (22-24) relate to his time at HMP Coldingley and the balance (25-30) relate to his time at HMP Onley.

At paragraph 40 of the Further Amended Detailed Statement of Facts and Grounds of Claim (“the Grounds”) the Claimant sets out his case as follows:-

“The ground of claim seek judicial review of the defendants’:

(1)

failure to apply the Defendants’ own policy or to apply it consistently;

(2)

failure at common law to provide access to justice;

(3)

unlawful treatment of the Claimant contrary to s.6 of The Human Rights Act 1998 in the failure to comply with and meet the minimum standards set by article 6 of The European Convention on Human Rights (‘ECHR’) and/or article 8 ECHR;

(4)

breach of the right to privacy; and/or

(5)

breach of the prohibition on harassment provided by the Protection from Harassment Act 1997”

The Defendants, for their part, submit that of the 34 alleged breaches a total of 8 are accepted and that in each such case it was as a result of error rather than any deliberate targeting or similar and that there is no suggestion that the correspondence was read or put to any improper use. In three cases the correspondence in question was not caught by Rule 39 or the Confidential Access provisions and in the remaining 23 cases it is submitted that the Claimant has simply failed either to prove that the mail in question was opened by the prison or if was opened that it was appropriately marked, relying on witness statements from Duncan Gow, Corruption Prevention Manager at HMP Swaleside, Julie Cowie, Custodial Manager at HMP Swaleside, Elen Parry, Manager of the Business Hub at HMP Coldingley and Darren Brooks, Custodial Manager at HMP Onley. To the extent necessary, they also rely on the apologies made and evidence as to improvements in systems undertaken as a result of the complaints made. Moreover, the Defendants also assert that the Claimant is not to be regarded as a victim for the purposes of s.7 of the Human rights Act 1998 and in any event, on the facts, there has been no breach of any convention right and that therefore the court should not in its discretion grant the relief sought.

Finally, and for the sake of completeness, I record that the Defendants also submit that the Claimant can have had no reasonable expectation of privacy in relation to mail that was not clearly marked rule 39 or confidential access and there has, in fact, been no material interference with his private information and that the final ground of challenge based on the Protection from Harassment act 1997 is misconceived.

Rule 39 of The Prison Rules 1999 (SI 1999/728) provides:-

“39- Delivery and receipt of legally privileged material

(1)

A prisoner may deliver to, or receive from the prisoner’s legal adviser at any court, either by post or during a legal visit under rule 38, any legally privileged material and such material may only be opened, read or stopped by the governor in accordance with the provisions with this rule.

(2)

Material to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such enclosure shall be dealt with in accordance with the other provisions of these Rules.

(3)

Material to which this rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.

(4)

A prisoner shall be given the opportunity to be present when any material to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped”

Detailed guidance on the operation of Rule 39 in practice is provided for in Prison Service Instruction 49/2011 (PSI 49/2011). That guidance includes the following:

“14.1

Correspondence between prisoners and the organisations/individuals listed below are subject to confidential handling arrangements as follows:

a)

RULE 39

•

The prisoner’s Legal Adviser (which may just be the name of a firm or organisation such as Prisoner’s Asdvice Service where the prisoner does not know name of legal adviser

•

Courts

•

Bar Council

•

Law Society

•

Official Solicitor

b)

CONFIDENTIAL ACCESS

•

Criminal Cases Review Commission (CCRC)

•

Legal Ombudsman (solicitors) or the Bar Standards Board (barristers)

•

Care Quality Commission

•

Parliamentary & Health Service Ombudsman

•

Office of the Legal Services Ombudsman

•

Prisons and probation Ombudsman (PPO)

•

Her Majesty’s inspectorate of Prisons (HMIP)

•

Members of the National Council of Independent Monitoring Boards (IMB) and its Secretariat

•

Equality and Human Rights Commission (EHRC)

•

Members of Parliament (MP) or Members of the National Assembly for Wales (AM) or Members of European Parliament (MEP)

•

Embassy or Consular officials

•

Samaritans

•

Registered Medical Practitioners (but only where they are treating a prisoner with a life threatening medical condition)

•

An Electoral Registration Officer (for submitting a postal vote only)

“14.2

Prison Rules 38 and 39 (1) and Young Offender Institution Rules 16 and 17 (1) provide for correspondence between prisoners and their legal advisers (defined as solicitor, counsel, or a clerk acting on behalf of either) or the Courts to be treated as privileged. This includes legally privileged material handed over on visits. For outgoing correspondence, letters may be addressed just to a firm of solicitors or organisation like the Prisoners’ Advice Service where prisoners are unsure of the legal adviser’s name. The following points must be followed by all staff to prevent incorrect interference with incoming legally privileged correspondence:

(a)

Legally privileged correspondence must not be stopped, opened and/or read, except in specific circumstances outlined in the prison Rules;

(b)

Legally privileged correspondence must only be opened if the Governor has reasonable cause to believe that;

(i)

it contains an illicit enclosure;

(ii)

the letter is not from a recognised legal adviser or other body covered by Rule 39. This decision must be made on a case by case basis by the governor and recorded on the prisoner correspondence log;

(c)

If the letter is opened due to a reasonable suspicion that it is not from a legal adviser or court, the following procedures apply:

(i)

If on initial examination, the letter is from a legal adviser or another Rule 39 body, the letter must not be read but must be placed back in the envelope and passed to the prisoner. A Security information Report (SIR) should be submitted and a letter sent to the legal adviser concerned noting what had happened;

(ii)

If, on initial examination, the letter is not from a legal adviser or other Rule 39 body, the letter may be read. A SIR must be submitted and consideration given to further communications monitoring;

(d)

Legally privileged correspondence must only be stopped, opened and/or read if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature;

(e)

Any legally privileged correspondence opened on the basis of 14.2 (b) and 14.2 (d) above must only be opened in the presence of the prisoner concerned (unless he or she declines the opportunity) and the prisoner must be informed if such correspondence is to be read or stopped;”

In order that prison staff can comply with the Rule 39/Confidential Access regime, it is plainly important that they are able to identify incoming Rule 39/Confidential Access mail without having to open it. To this end PSI 49/2011 contains guidance at Annex D as to how such mail should be marked and packaged by the sender to ensure that it is properly identified as follows:-

“12 Incoming correspondence should be in a double envelope enclosing a letter sealed in an unstamped envelope, the outside of which will annotated with the prisoner’s name and number (if known); the name, address and telephone number of the law firm and a reference number; the words ‘Prison Rule 39’ or ‘YOI rule 17’; and the signature of the legal adviser or his or her clerk (or appropriate official in the case of confidential access correspondence). Alternatively, this information may be given in a covering letter to the Governor rather than written on the envelope addressed to the prisoner. All mail received from the European Commission or the European Courts is readily identifiable, i.e the envelope is clearly stamped, bearing the words ‘European Commission, Strasbourg’ or ‘European Court of Justice’ in both English and French.

13 There will be occasions when, due to oversight or lack of awareness by the author, an incoming letter may not be clearly marked in this way. Nonetheless where incoming correspondence appears as if it has come from a legal adviser (for example by a solicitors stamp on the envelope or by some other marking such as ‘Legal Correspondence – Privileged’) or from an organisation entitled confidential access, it should be treated in exactly the same way as if it were properly marked. In those cases, where mail is received from a legal adviser employed by organisations such Prisoners’ Advice Service, Liberty or Citizens Advice Bureau the same procedure will apply.”

Including those covered by the complaint to the PPO the Claimant at paragraph 22 of the Grounds, as updated in the Schedule, raises a total of 34 occasions on which he says there was interference with his Rule 39/Confidential Access mail.

As I have already recorded, the Defendants admit a total of 8 breaches. They relate to complaints numbered 12, 18, 18A, 23, 25, 26, 27 and 30 in the Schedule and relate to all three prisons and I need to say no more about the substance of these complaints.

I turn now to a consideration of the alleged breaches at the three prisons concerned.

So far as complaints 1, 2, 3, 4 and 5 are concerned, it was submitted on behalf of the Defendants that the Claimant had not supplied the relevant envelopes so that it could not be ascertained whether these items of mail were clearly marked such that it ought to have been apparent that the Rule 39/Confidential Access regime applied. The most likely explanation it was said was inadequate marking. However it is to be noted that these complaints form part of the Claimant’s complaint to the PPO which was upheld and I accept the validity of that finding.

In relation to complaint 6 (17 October 2014), the Claimant has supplied the relevant envelope and a prison officer has confirmed that the envelope had been opened prior to receipt by the Claimant. The sender is not clear from the envelope but the words “confidential access” are included in the window section of the letter. The Claimant has not produced the further envelope that he asserts was contained within the envelope and on that basis the Defendants assert that it is simply not known whether this further envelope was clearly marked such that it ought to have been apparent that Confidential Access applied. Nor can the Court be satisfied that this further envelope was opened prior to it being received by the Claimant. Again, however, this complaint was the subject matter of the PPO complaint which was upheld and I too am satisfied that the complaint is made out.

In relation to complaint 7 (5 December 2014) the Claimant has not supplied the relevant envelope and nor is there confirmation from any prison officer that the envelope had been opened prior to receipt by the Claimant (although the Claimant seeks to rely upon a note from another prisoner).

In relation to complaint 8 (22 December 2014) the Claimant has supplied the relevant envelope. There is no confirmation from any prison officer that the envelope had been opened prior to receipt by the Claimant although again the Claimant seeks to rely upon the note from another prisoner.

In relation to complaints 9 and 10 (27 August 2015 and 14 September 2016) the Claimant has not supplied the relevant envelopes. Nor is there confirmation from any prison officer that the envelopes had been opened prior to receipt by the Claimant.

In relation to complaint 11 (7 November 2015) the Claimant has not supplied the relevant envelope. Nor is there any confirmation from any prison officer that the envelope had been opened prior to receipt by the Claimant although the Claimant seeks to rely upon a note from another prisoner.

In all these cases in the absence of the envelopes, the Defendants submit that it cannot be known whether these items of mail were clearly marked such that it ought to have been apparent that Rule 39 / Confidential Access applied. Nor, it is submitted, can the Court be satisfied that these envelopes were opened prior to being received by the Claimant.

In relation complaint 13 (23 October 2015/12 November 2015 and complaints 14 and 15 (10 November 2015 and 19 November 2015),) the Claimant has submitted the relevant envelope which shows that in each case the envelope was sufficiently marked such that it ought not to have been opened by censors. However, there is no confirmation from any prison officer that the envelope in question had been opened prior to receipt by the Claimant.

In relation to complaints 16, 17 and 20A, the Claimant has supplied the relevant envelope and in the  case  of complaint 17 the words “ Solicitor’s Correspondence prison Rule 39 Applies” appear whilst in the case of complaint 20A the words “ In confidence: Confidential Access Rules Apply” appear. In the case of complaint 19, although the Claimant has not supplied the envelope, a member of prison staff has confirmed in the open in error log that the envelope was opened prior to receipt by the Claimant, albeit that it also records that the envelope was not marked as being covered by Rule 39.

In relation to complaint 20 (16 November 2016) the Claimant has not supplied the relevant envelope. The open in error log recalls that a letter was opened but also states “not marked on envelope Rule 39 or Solicitors marks. Saw mark when turned letter round. Do not believe Rule 39. Opened in error”.

In relation to complaint 21 (13 April 2016) the Claimant alleges that legally privileged mail was delivered to the wrong cell and a prison officer has confirmed that mail from the Bar Standards Board was found in another prisoner’s cell.

In summary, therefore, what is said on behalf of the Defendants is that in respect of all these alleged breaches the Court cannot be satisfied that the correspondence in question was opened or if it was that it was opened prior to receipt by the Claimant alternatively it is said that it was opened in error, perhaps because the confidential access marking was no longer visible (because of slippage within the envelope) or the marking was inadequate.

Furthermore, so far as complaints numbered 8AA, 8A and 28 are concerned, relating to correspondence from the Health Care Professions Council, the Royal Berkshire NHS Trust and the General Medical Council respectively, it was said on the Defendants’ behalf that such correspondence is simply not covered by the Rule 39/ Confidential Access regime and therefore I should reject those complaints on that basis. The difficulty with that submission, however, is that the Defendants must still establish that it was necessary and proportionate for them to open such mail, an issue to which the Defendants at the time plainly failed to address their minds, and I therefore reject that submission.

To my mind the documentary evidence is clear and compelling. The repetitive nature of the alleged breaches suggests serious shortcomings in the mail handling systems at HMP Swaleside. There are admissions in the Defendants’ own evidence of staff shortages but they do not, of course, explain the continuing failure over many months and it is plain that training has been wholly inadequate and the evidence clearly establishes a lack of knowledge of the regime. The Prison’s records demonstrate persistent non application of the Rule 39/Confidential Access regime and the records in the form of the opened in error log are such that the Defendants are simply not able to rely on the absence of an entry as being of any evidential value. The documents disclosed do not contain a full or accurate record and demonstrate non application of the PSI provisions with the same approach to opening mail not clearly marked with Rule 39 being evident. The opened in error log disclosed covered the period 2009 to 2016 and recorded just 12 occasions of error during that period including those concerning the Claimant that had been recorded. Most recorded entries were drugs related and so were deliberate openings for which the necessary authority had been issued. Plainly it omits many errors which have been made. The records are not in chronological order and where there are entries there are large and inexplicable gaps and then spurts of recording and in general terms recording appears only to have occurred where the error or cause was not regarded as the fault of the person who opened the correspondence and the log does not even record two breaches which the Defendants have admitted namely, 12^th November 2015 and 18^th January 2016.

Moreover the response of HMP Swaleside to the PPO’s report was frankly lamentable and evidences, over a prolonged period of time, a lack of interest in recognising evident shortcomings in its systems still less in implementing effective change.

In short, I have no hesitation in accepting the evidence of the Claimant and hence of the substance of the allegations made in respect of these complaints and conclude that HMP Swaleside was not implementing the PSI in relation to Rule 39/ Confidential Access mail as a result of systematic failings, albeit not as a result of deliberate policy, and I regard such evidence as has been adduced as to changes made to systems as being too little and too late.

In relation to complaint 22 the envelope is clearly marked “confidential access” and is stamped “Parliamentary and Health Service Ombudsman”. The Defendants’ response is a denial that the letter was opened. However, I am satisfied on the balance of probabilities on the basis of the Claimant’s evidence that it was indeed opened.

In relation to complaint 24 the envelope is clearly marked Rule 39 and stamped “No 5 Chambers.” it is, however, logged as being unopened by the Defendants and in those circumstances I am not satisfied that there has been any breach of the Rule 39/Confidential Access regime.

In relation to complaint 27 the envelope is clearly marked as being “from the Information Commissioner’s Office and subject to the confidential access procedure” and in Mr Brook’s second witness statement at paragraph 7-9 he says as follows:-

“7 There is however an entry dated 22^nd October 2016. O S G Tolson made the entry and wrote that one Rule 39 letter for Mr Bruton was opened and an interception form was completed which was signed by the prisoner.

8.

I was aware of the entry on 22^nd October in relation to a Rule 39 letter for Mr Bruton being opened in error. However as this did not match the dates the Claimant complained of, I did not link it with the complaint.

9.

It is my opinion that this is very likely to be the same breach as the Claimant complained of on 24^th October as this correspondence probably arrived on 22^nd October and was probably issued to the Claimant on 24^th October 2016. The reason for the delay is because the 22^nd October was a Saturday. There were two staff detailed to work in the Correspondence office on 22^nd October 2016. If however the staff had a large amount of mail to get through and there isn’t a dog handler on duty to check over the Rule 39 correspondences then it would be possible for the mail to be handed out two days later. There was no mail delivered on 23^rd October 2016, a Sunday. The daily diary forms for 1-31October 2016 are exhibited to this statement at DBT”.

I accept the substance of these paragraphs as the likely explanation.

In relation to complaint 29, the Claimant has provided the envelope. It is clearly marked “Parliamentary and Health Service Ombudsman” and although Mr. Brooks indicates in his first witness statement that there is nothing written in the log book Correspondence around this date to suggest any of the staff opened the mail in error I accept the substance of the Claimant’s evidence on the point and I am satisfied that this constituted a breach of the Rule 39/Confidential Access regime.

It is plain on my findings that the Defendants have failed in their duty properly to apply applicable law and policy. They have admitted instances and I have found many more spread over three separate prisons and over a period of some three years. To my mind the response of the prison service has been inadequate and too frequently dismissive or hollow and reflects a failure to recognise the sustained and multiple nature of the breaches. The initial, so called, apology was nothing of the sort and even the later apology only addressed the breaches in 2014 and put forward inadequate excuses.

It is plain that there has been inadequate ‘on the job’ only training of staff exacerbated by repeated staff shortages coupled with plain ignorance of the relevant rules relating to Confidential Access correspondence and of the proper treatment of material not expressly marked Rule 39 but which is clearly from a recognised body to which the rule of confidentiality applies. This is evidenced by the regular repeated failings in all three prisons and by assertions made by prison staff as to their ability to open material which, in fact, the law prohibits them from opening.

Moreover an analysis of the Defendants’ own evidence plainly demonstrates a failure to keep proper records of breaches of Rule 39/Confidential Access matters. Such attempts as there have been made to improve systems have plainly failed over a prolonged period at least so far as HMP Swaleside is concerned.

Failure at common law to provide access to justice

The right of a prisoner to have unimpeded access to his lawyer is part of the constitutional right to access to justice safeguarded by the common law and that right has clearly been breached in this case even if there has been no deliberate policy of targeting of the Claimant and even if in fact the material was not read. The effect of the repeated breaches has led to the Claimant being deterred from pursuing his rights because of concerns that his mail would be opened and read.

Article 8 of The ECHR provides protection from interferences with the respect for private life. This encompasses a right to privacy and to seeking redress for personal matters affecting the individual’s life through legal recourse. In the context of a detained prisoner, article 8 provides protection where Rule 39 and Confidential Access are concerned and as the authorities make clear, the burden is on the State to provide a lawful justification for an interference with article 8.

What is said on behalf of the Defendants is that the Claimant is not a victim within the meaning of s.7 of The Human Rights Act 1998 and that in any event there has been no breach of any convention right and on the facts the court ought not to grant any relief.

Pursuant s.7(3) of The Human Rights Act 1998 where a claimant seeks to bring a claim for judicial review on the ground that the public authority has acted incompatibly with a convention right he may only be taken to have a sufficient interest in bringing the claim if he is or would be a ‘victim’ of the act. By virtue of s.7(7) a person is a victim of an alleged unlawful act only if he would qualify as a victim for the purposes of article 34 of the Convention if proceedings were brought in The European Court of Human Rights.

Article 34 provides:-

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto.  The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The meaning of victim in relation to the opening of prisoners’ Rule 39 mail has been considered by both the Strasbourg Court and the High Court. In Ryder v. United Kingdom (application no. 14176/88), The European Commission of Human Rights considered whether a prisoner whose rule 39 mail had been opened on 3 occasions in a 15 day period with a further letter having gone missing altogether claimed to be a victim of a violation of article 8. The Commission stated:-

“The Commission’s previous law indicates that the opening of a prisoner’s correspondence with his solicitor may raise issues under article 8 of the convention. In the case of McCombe v. The United Kingdom (no. 10621/83, December 11.3.85, to be published in DR) the Commission declared admissible the complaints of a prisoner regarding the censorship of his correspondence with his solicitors. The Commission also recalls that pursuant to a friendly settlement in that case, the United Kingdom government agreed to issue instructions that such correspondence would not be opened, save in the presence of the prisoner concerned.

The Commission notes that these instructions appear to have been implemented in the prisons in which the applicant was detained but that various incidents occurred in which letters from his solicitors were nonetheless opened. The Commission further notes that the applicant was able to complain to the governor and the secretary of state concerning these incidents and received various apologies and explanations, which the commission finds to be reasonable in the circumstances of this case. In the absence of any evidence of a deliberate flouting or disregard of the secretary of state’s instructions, the Commission finds that the applicant can no longer claim to be a victim of a violation of article 8 of the Convention.”

The European Court of Human Rights adopted a similar approach in Armstrong v. United Kingdom (application no. 48521/99). In that case, four Rule 39 letters had been opened over a 5 month period. As in Ryder the court concluded that the prisoner could not claim to be a victim of a violation of article 8.

In Armstrong reference was made to the decision of Faulkner v. United Kingdom (application no. 27471/97) where one solitary letter had not been sent on from a prisoner to the Scottish Minister of State. A violation of article 8 was found. The interference was not ‘in accordance with the law’ nor ‘necessary in a democratic society’ for any reason permitted by article 8(2). However, the annoyance and frustration from the failure to send this one letter was not of an intensity to justify awarding damages and so the court considered that finding of violation was sufficient just satisfaction.

Armstrong also referred to the decision of Touroude v. France (application no. 35502/97) where a single letter had been wrongfully opened by mistake. In that case a distinction was drawn from a case where, by reason of their repetition, incidents had revealed a malfunctioning of the mail service within the prison interfering with the right to respect for correspondence within article 8, namely Demirtepe v. France (application no. 34821/97). In that case the Commission had found a violation of article 8 where the prison had opened a number of letters, probably not deliberately, but repeatedly. This amounted to an interference with the applicant’s right to respect for his correspondence within the meaning of article 8 and the court awarded 5,000 French francs by way of compensation.

There are two relevant High Court decisions to which I was referred. They are both decisions of Davis J (as he then was) namely Francis v. The Home Office [2006] EWHC 3021 (QBD) and Woodin v. The Home Office [2006] All ER (D) 475 (Jul).

In Francis, the court found that three rule 39 letters has been wrongly opened by the prison over a 2 ½ year period. Having cited Ryder and Armstrong the court observed that in determining whether a claimant qualified as a victim for the purposes of s.7 of The Human Rights Act 1998:-

“68.

A claim can only be bought under the Human Rights Act 1998 if the claimant is a “victim;” see section 7 of the 1998 Act and Article 34 of the Convention. In certain other cases where prisoners have complained of correspondence being wrongly opened it has been held that an appropriate apology, and assurances as to future conduct, coupled with any necessary corrective action, was sufficient to mean that the claimant could no longer be considered a victim: see for example Faulkner v United Kingdom, application 37471/97; Armstrong v United Kingdom, application 48521/99; Ryder v United Kingdom, application 14176/88. On the other hand, there are cases where, in this context, victim status is established. Relevant factors may be the number of incidents of breach and the lack of apology or assurances or action as to future conduct with regard to correcting mistakes. Always important in such a context is the question of whether or not any letters were wrongly opened deliberately. All the same, it is difficult, it seems to me, to establish any clear principle: it seems to be the case that each matter has to be considered on its own facts.

69.

In my view, having regard to my primary findings of fact, it is clear enough on which side of the line this particular case falls and it is clear enough that Mr Francis could no longer by styled a “victim” when he commenced these proceedings for the purposes of section 7 of the Act and Article 34 of the Convention. The most important features to my mind are these (although I am not to be taken as saying that all these points are in fact necessary to justify my conclusion that Mr Francis is not a victim in the sense of the Convention). First, only two letters from the MP were involved and neither was read; and so far as letters from lawyers are concerned, JF10 was the only one involved and that too was not read and moreover it was sent on in rather special circumstances. Second, the letters were opened not deliberately but inadvertently, the letters from the MP not even being marked confidential in any shape or form. As to JF10, as I have said, it was a forwarded letter and I accept that it was not read and I accept that it was not opened deliberately. Third, apologies and explanations were given, assurances were offered and steps were taken in terms of reminding the censors' staff of the position about PSI2005/02 and the rules to prevent reoccurrence. Fourth, there is no question of Mr Francis being singled out or picked on in any way by the censors' department or anyone else at Belmarsh. Fifth, no damage as such was caused by such openings.”

In Woodin the court found that three Rule 39 letters had been wrongly opened by the prison over a 5 week period. It noted that the prison correspondence office was ‘understaffed and overstretched’ and having again cited Ryder and Armstrong Davis J observed as follows:-

“35.

The second letter of which complaint is now made by Mr Francis was exhibit JF3. It was a letter from the Criminal Cases Review Commission and was received, although apparently not logged, on the 6^th July 2005. Such a letter of course does not directly fall within Rule 39 as such but (as with the letter from Mr Moss MP) fell within the confidential access arrangements set out in PSI2005/02. The letter was clearly stamped with the CCRC stamp on the front of the envelope. There is a dispute as to whether that letter was opened before it was received by Mr Francis. On the whole I consider that it was not proved that it was so opened. None of the censors recollect or accept opening it, it was not recorded in the opened in error log, and there is no censors' stamp on the envelope to indicate that it had been opened. Moreover, and noticeably, Mr Francis made no formal complaint at the time. Given his normal readiness to do so that, I think, is rather surprising if the letter had indeed been opened. None of these points individually is decisive; but taken together they indicate to me that the letter had not been wrongly opened by anyone at Belmarsh. To the extent that Mr Francis's evidence was to the contrary, I do not accept it.

36.

The third letter is exhibit JF6. This was post marked 26^th July 2005 and received and logged at the prison on the 29^th July 2005. The envelope clearly bears the Peterborough County Court stamp. As such it was a Rule 39 letter, although the envelope had no Rule 39 stamp on it. The letter bears a processing stamp of censor 9, who was Mrs Stelfox. That might indicate that it had been opened. But Mrs Stelfox, a very reliable and experienced witness, told me that she, unlike some of her colleagues, sometimes fixed her censor's stamp to letters she had handled, even when she had not opened them. She also told me that she, in common with other censors, always used a paper knife: but that particular letter seems to have been rather crudely opened. In her witness statement, Mrs Stelfox said that she had not opened this letter. It was not put to her in cross examination that she was mistaken or not telling the truth on this and I accept her evidence. It is also to be noted that Mr Francis made no formal complaint at the time about this letter. I find that it is not proved that this letter was wrongly opened by anyone at Belmarsh.

37.

The fourth letter exhibit JF15 was another letter from the Peterborough County Court, posted on the 28^th July 2005, (although not logged when received) and bearing the Peterborough County Court stamp on the envelope. Again, therefore, Rule 39 applied to this letter even though it was not stamped Rule 39 as such. There is no censor's stamp on the envelope (which envelope is also ripped) to indicate that it had been opened, and Mr Francis made no complaint at the time that it had been wrongly opened. In such circumstances, it is not proved in this case that it had been wrongly opened by any of the defendants.

38.

The fourth letter, JF1, is a letter from the Treasury Solicitors received on the 2^nd July 2005. The Treasury Solicitors, of course, were not Mr Francis's legal advisors. As such, letters from them do not fall within Rule 39 or confidential access procedures. In fact, as I find, the evidence also did not establish that that letter had been opened by the defendants; and it may be noted that the evidence shows that Mr Francis made no formal complaint at the time. Given that this letter is from the Treasury Solicitors there can for that reason alone be no ground of complaint in this regard.

39.

The fifth letter, JF7 was a letter from Galbraith Branley, a firm of solicitors acting for Mr Francis. Receipt of that letter was logged on 9^th August 2005. The envelope had fixed to it on the outside a stamp (albeit with no signature) of the solicitors. But it was not in a double envelope nor was it marked as a Rule 39 letter on the envelope itself, contrary to the guidance given by the Law Society. It seems, however, that Rule 39 had been marked on the enclosed letter which was presumably designed to be visible through the window of the envelope immediately above the name of the addressee, Mr Francis - not a desirable procedure to be adopted, in my view, given that the positioning of the letter in such an envelope is not necessarily constant. The letter is stamped with the stamp censor 5. That was Toni Mayhew, one of the censors. She said in evidence to me that she had not opened it. It was in fact marked by her on the envelope "not opened". I accept that evidence: which is also consistent with the fact that Mr Francis submitted no complaint at the time. It is in such circumstances not proved that this letter was wrongly opened.”

It is clear from these various authorities that there are a number of factors to be considered when deciding whether a prisoner qualifies as a victim for the purposes of s.7 of The Human Rights Act 1998 and article 34. They include the number of letters opened; whether the letters were opened in error and not as a result of a deliberate or systematic disregard of the Prison Rules and PSIs; whether the letters were read; whether the claimant was being singled out or targeted by the prison; whether the appropriate apologies were given to the prisoner and steps taken to prevent reoccurrence and whether damage was caused to the prisoner as a result of the openings.

As it seems to me, there is a clear distinction which can be drawn between the cases of Francis and Woodin on the one hand and the position of Mr Bruton on the other not least given the number of breaches, the period during which the breaches took place and the fact that they took place in three separate prisons. The repeated nature of the breaches suggests systemic failures and to my mind the Claimant can readily be classed as a victim. I have also already alluded to the inadequate nature of the initial apology as well as the very substantial delay in making it and generally to the inadequate response to complaints all of which contribute to the conclusion that the Claimant’s case can be distinguished from those of Francis and Woodin.

The next issue is whether relief should be granted for the infringement of the Claimant’s article 8 rights. As the authorities make clear, it by no means follows that where there has been a violation of human rights then financial compensation is necessarily awarded. I have a discretion and I have to consider whether it is necessary to afford just satisfaction to grant monetary relief. In this case, as it seems to me, it is necessary and appropriate, having regard to all the circumstances, to make an award of financial compensation. Just satisfaction would not in the circumstances of this case lie in his having established by way of findings in a judgment of public record certain infringements in respect of his rights.

Having concluded that the Claimant has made out his case under ground 3 there is no need for me to go on to consider the submissions made by the parties in respect of grounds 4 and 5 and I don’t propose to do so save to observe that the Claimant’s attempt to rely on The Protection from Harassment Act 1997 is plainly misconceived having regard to the definition of harassment in R v. Curtis [2010] 1 WLR 2770.

Having regard to my findings it is appropriate that there be a suitably worded declaration and an award of damages. I trust that the parties will be able to agree the wording of the declaration and an appropriate figure by way of damages failing which I invite the parties to submit short skeleton arguments setting out their respective positions for consideration when the judgment is formally handed down.

Counsel for the Claimant invites me to go further and consider making a prohibitory order preventing the opening of Rule 39/ Confidential Access mail and a mandatory order requiring the Defendants to provide training and instruction and the like and or such other orders as the court thinks fit. I am not, however, persuaded that this court should make any such further orders in this case. It is for the Secretary of State to decide how best to ensure compliance, having regard to the resources available to her.

Finally I should like to take this opportunity to thank both counsel for their very helpful submissions in this case.