CASE OF SZULUK v. THE UNITED KINGDOM
Violation of Art. 8;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1955 and is currently in prison in Staffordshire. 6. On 30 November 2001 the applicant was sentenced by a Crown Court to a total of fourteen years’ imprisonment for conspiracy to supply Class A drugs and two offences of possession of a Class A drug with intent to supply. 7. On 6 April 2001, while on bail pending trial, the applicant suffered a brain haemorrhage for which he underwent surgery. On 5 July 2002 he underwent further surgery. Following his discharge to prison, he required monitoring and was required to go to hospital every six months for a specialist check-up by a neuro-radiologist. 8. In 2002 the applicant was held in a high-security prison which held Category A (high-risk) prisoners as well as Category B prisoners such as himself. As a result, he fell within the provisions of a general order, Prison Service Order (PSO) 1000, which applied to all prisoners of whatever security category who were being held in a unit which held Category A prisoners (see paragraph 28 below). 9. The applicant wished to correspond confidentially with his external medical specialist to ensure that he would receive the necessary medical treatment and supervision in prison. He expressed his concerns about his medical correspondence with his external medical specialist being read and applied to the prison governor for a direction that such correspondence should be accorded confidentiality. 10. On 18 September 2002 the governor of the prison in which the applicant was being detained agreed to the applicant’s request. It was decided that the applicant’s medical correspondence would not be read provided that certain conditions were met. All outgoing and incoming mail was to be marked “medical in confidence”. Outgoing correspondence would be checked to ensure that it was being sent to a nominated address and incoming mail was to be marked with a distinctive stamp of the relevant health authority. 11. The prison governor subsequently reconsidered his decision after seeking advice from HM Prison Service Headquarters. On 28 November 2002 the prison governor informed the applicant that he had been advised that it was necessary to examine his medical correspondence for illicit enclosures. All correspondence between the applicant and his external medical specialist would be directed, unopened, to the prison medical officer. The latter would examine the content of the envelope in order to ascertain its medical status and then reseal it. Incoming and outgoing correspondence would then be sent to the applicant and his external medical specialist respectively. 12. The applicant contested the decision to monitor his medical correspondence. He was concerned that his attempts to confirm that he was receiving adequate treatment in hospital might be regarded by the prison medical officer as criticism and that this might inhibit his relationship with his external medical specialist. 13. On 4 August 2003 the applicant applied for leave to apply for judicial review of the prison governor’s decision of 28 November 2002. On 20 February 2004 the presiding High Court judge, Mr Justice Collins, allowed the applicant’s claim for judicial review. 14. The Prison Service had submitted, inter alia, that it would be difficult to make the necessary arrangements to permit medical correspondence to remain confidential. They argued that there were a large number of health bodies with which a prisoner might wish to correspond and that some health bodies might lack franking machines that would enable prisons to identify the authenticity of the sender. 15. Mr Justice Collins concluded that there were exceptional circumstances in the applicant’s case. The exceptional circumstances were said to be the life-threatening nature of the applicant’s condition and his desire to ensure that his treatment in prison did not affect him adversely. The applicant, understandably, wanted to obtain reassurance from the medical specialist who was involved in treating him and from whom he required continual medical care, in the form of biannual specialist observations. Mr Justice Collins also found that the initial decision of the prison governor to enable the applicant to correspond on a confidential basis with his external medical specialist indicated that it was reasonable to permit such confidential correspondence. The evidence of the Prison Service as to the practical problems involved in making arrangements to enable confidential medical correspondence were not directly material in an exceptional case such as the present one. 16. In the circumstances, and emphasising that this was a case which turned on its own exceptional facts, Mr Justice Collins considered it appropriate to quash the prison governor’s decision of 28 November 2002. He granted the applicant a declaration that “the governor of whatever prison the [applicant] resides [in] should make a decision in accordance with the principles made in light of this judgment”. 17. On 29 October 2004 the Court of Appeal allowed the appeal by the Secretary of State and the prison governor. Lord Justice Sedley gave the judgment of the court. It was noted that there was no dispute that the reading of prisoners’ correspondence was governed by law, and that it was directed to the prevention of crime and the protection of the rights and freedoms of others. The issue to be decided was whether, in the language of Article 8 § 2 of the Convention, the reading of the applicant’s correspondence was proportionate. While the prison governor’s initial decision to allow confidentiality to the applicant’s medical correspondence with his external medical specialist strongly suggested that its exemption from Chapter 36.21 of PSO 1000 would be a perfectly reasonable course, the onus still remained on the applicant to establish that anything more invasive would constitute a disproportionate interference with his Article 8 rights. 18. The Court of Appeal concluded that although the procedure set out in the prison governor’s letter of 28 November 2002 amounted to an interference with the applicant’s right to respect for his correspondence, the interference was justified and proportionate under Article 8 § 2 of the Convention. It considered that although it was of course possible to verify the existence, address and qualifications of the applicant’s external medical specialist (whose bona fides was not in question), there was no way of ensuring that the latter would not be intimidated or tricked into transmitting illicit messages. While the same was true of, for example, the secretarial staff of members of parliament (MPs), the importance of unimpeded correspondence with MPs outweighed the risk. By contrast, as regards correspondence with doctors, the prisoner’s health was the concern and the immediate responsibility of the Prison Medical Service. Though it may well be the case that allowing the prison medical officer to read the prisoner’s correspondence with an outside medical practitioner might lead the former to “encounter criticism of his own performance”, it was inherently unlikely that this would carry the same degree of risk that might attend the reading by a discipline officer of a letter of complaint to the Prisons Ombudsman. Moreover, if it related to the prisoner’s well-being it was probable that the prison medical officer ought in any event to know about it. 19. The Court of Appeal concluded that the monitoring of the applicant’s medical correspondence was a proportionate interference with his Article 8 rights, although it did not exclude the possibility that in another case it might be disproportionate to refuse confidentiality to medical correspondence in the prison context. The Court of Appeal based its conclusion on the following factors. Firstly, the monitoring of the applicant’s medical correspondence answered legitimate and pressing policy objectives which were clearly stated in Chapter 36.1 of PSO 1000 (see paragraph 28 below). Secondly, short of withdrawing all scrutiny, it considered that there was no less invasive measure available to the prison service. Thirdly, the reading of the applicant’s medical correspondence which was limited to the prison medical officer was not in its view excessive. Fourthly, the process by which the measure had been decided upon was not found to be arbitrary. In particular, it had not been the result of the rigid application of a policy. The withdrawal of monitoring had not only been considered but had been implemented until, upon reconsideration, monitoring had been resumed. The interference in question had not denied the essence of the applicant’s Article 8 rights as it related to one correspondent only (the external medical specialist) and it confined the interference to a medically qualified reader (the prison medical officer). It was recognised that there was an inescapable risk of abuse, for example, if the applicant’s prison life or treatment was made more difficult because of what he was observed to be writing. However, the risk, having been minimised by virtue of confining surveillance to the prison medical officer, was outweighed by the above-mentioned factors. 20. On 18 April 2005 the applicant’s petition for leave to appeal was refused by the House of Lords on the ground that the petition did not raise an arguable point of law of general public importance. 21. Since 22 May 2007 the applicant has been located in a Category B prison in Staffordshire. 22. The Secretary of State is responsible for the management of the prison system in England and Wales (Prison Act 1952, sections 1 and 4). 23. Until November 2007 each prison was required to appoint a medical officer (Prison Act 1952, section 7(1)). The medical officer was a prison officer who had to be a registered medical practitioner (Prison Act 1952, section 4). This requirement was removed by section 25(1) of the Offender Management Act 2007 which came into force on 1 November 2007. Prison health care is now generally integrated with, and commissioned by, the National Health Service (NHS). 24. Section 47(1) of the Prison Act 1952 authorises the Secretary of State to make rules for the regulation and management of prisons and for the classification, treatment, employment, discipline and control of persons required to be detained therein. Such rules are made by statutory instrument, laid before Parliament, and are subject to annulment in pursuance of a resolution of either House of Parliament (Prison Act 1952, section 52(1) and the Criminal Justice Act 1967, section 66(4)). 25. Prisoners are classified in accordance with directions of the Secretary of State (Prison Rules SI 1999/728 rule 7(1)). Prisoners are classified in accordance with PSO 0900. Paragraph 1.1.1 of PSO 0900 contains the definitions of the four categories of prisoner (A, B, C and D). Category A is applied to prisoners whose escape would be highly dangerous to the public or the police or the security of the State, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible. Category B is applied to prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult. 26. Rule 34 of the Prison Rules is headed “Communications Generally” It provides as relevant: “(1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8. (2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed – (a) does not interfere with the Convention rights of any person; or (b) (i) is necessary on grounds specified in paragraph (3) below; (ii) reliance on the grounds is compatible with the Convention right to be interfered with; and (iii) the restriction or condition is proportionate to what is sought to be achieved. (3) The grounds referred to in paragraph (2) above are – (a) the interests of national security; (b) the prevention, detection, investigation or prosecution of crime; (c) the interests of public safety; (d) securing or maintaining prison security or good order and discipline in prison; (e) the protection of health or morals; (f) the protection of the reputation of others; (g) maintaining the authority and impartiality of the judiciary; or (h) the protection of the rights and freedoms of any person. ... (8) In this rule – ... (c) references to Convention rights are to the Convention rights within the meaning of the Human Rights Act 1998.” 27. Rule 39 of the Prison Rules deals with correspondence with legal advisers and courts and provides that such correspondence may only be opened, read or stopped by the prison governor in accordance with the provision of that rule, namely when the governor has cause to believe either that the correspondence contains an illicit enclosure or that its contents endanger prison security or the safety of others or are otherwise of a criminal nature. 28. Chapter 36.1 of PSO 1000, which was applicable at the relevant time and which dealt with prisoner communications in connection with those who were in Category A prisons, or who were in prisons which held Category A prisoners, provided as follows: “Prison management must provide facilities for prisoners to maintain contact with family and friends. Prisoners’ rights to respect for their private and family life and correspondence are also protected by Article 8 of the European Convention on Human Rights. The Prison Service’s duty to protect the public allows us to interfere in this privacy in order to minimise the possibility that, in communicating with the outside world, prisoners: (i) plan escapes or disturbances; (ii) jeopardise the security and good order of the prison; (iii) engage in offences against criminal law or prison discipline; (iv) jeopardise national security; (v) infringe the rights and freedoms of others.” 29. Chapter 36.21 of PSO 1000 read: “All correspondence, other than correspondence protected by PR39 [that is correspondence with legal advisors] or that with the Samaritans, must be read as a matter of routine in the following cases: (i) all prisoners of whatever security category, held in a unit which itself holds Category A prisoners.” 30. Chapter 36.22 continued as follows: “Routine reading is necessary in these cases in order to prevent escape and, in the case of Category A prisoners, in the interests of public safety. It is also necessary in preventing crime and disorder, for the protection of the rights and freedoms of others, and, in some cases, necessary in the interests of national security or the economic well being of the country.” 31. PSO 4411 is entitled “Prisoner Communications: Correspondence”. It came into operation on 5 September 2007. So far as is material to the present case it reflects the practice and procedure in operation from 2002 to 2004. 32. Special treatment was at the relevant time and still is given to various forms of correspondence apart from that with legal advisers, specifically covered by rule 39 of the Prison Rules and that with the Samaritans, specifically mentioned in Chapter 36.21 of PSO 1000. Correspondence with, inter alia, the courts, the Bar Council, the Law Society, the Criminal Cases Review Commission, the Office for the Supervision of Solicitors, the Office of the Parliamentary Commissioner, the Office of the Legal Services Ombudsman, the Probation Ombudsman, the Commission for Racial Equality and MPs are generally treated as confidential. 33. PSO 4411 introduced a new category of correspondence subject to confidential handling arrangements. Chapter 5.1 includes the Healthcare Commission as one of the bodies with which a prisoner is entitled to correspond confidentially. The Healthcare Commission is the independent watchdog for health care in England. It assesses and reports on the quality of services provided by the NHS and the independent health-care sector. 34. Chapter III, paragraph 34 of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) standards published in October 2006 states the following: “While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health-care service should be so organised as to enable requests to consult a doctor to be met without undue delay. Prisoners should be able to approach the health-care service on a confidential basis, for example, by means of a message in a sealed envelope. Further, prison officers should not seek to screen requests to consult a doctor.” 35. Paragraph 50 of the CPT standards provides: “Medical secrecy should be observed in prisons in the same way as in the community. ...”