DONALDSON v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
1. The applicant, Mr Christopher Donaldson, is an Irish national who was born in 1983 and lives in Lisburn. He was represented before the Court by Mr F. Shiels of Madden & Finucane, a lawyer practising in Belfast. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. The applicant is currently serving a twelve year sentence in HMP Maghaberry. At all material times he was held in Roe House, which was a segregated wing for republican prisoners. Facilities such as the exercise yard and the gymnasium were used separately and the only place where segregated prisoners such as the applicant could come into contact with other prisoners was in the visiting hall. 4. The Northern Ireland Prison Service Standing Orders stated that prisoners were not permitted to wear emblems outside their cells or display emblems in their cells. In HMP Maghaberry, an exception was made with respect to the wearing of shamrock on St Patrick’s Day and the wearing of poppies on Remembrance Day as these emblems were deemed to be “nonpolitical and non-sectarian” if worn at the appropriate time. 5. On Easter Sunday, 23 March 2008, the applicant affixed an Easter lily to his outer clothing in commemoration of the Irish republican combatants who died during or were executed after the 1916 Easter Rising. A prison officer asked him to remove the Easter lily and when he refused he was charged with disobeying a lawful order under the Prison and Young Offenders Centre Rules (Northern Ireland) 1995. The applicant was subsequently found guilty of disobeying a lawful order and was given three days of cellular confinement by way of punishment. 6. The applicant applied for leave to bring judicial review proceedings challenging, inter alia, the policy of the Northern Ireland Prison Service in respect of the wearing of Easter lilies. In particular, he submitted that the policy represented a disproportionate interference with his right under Article 10 of the Convention freely to express his political beliefs and cultural identity. Moreover, while he accepted that the aim of the policy was the prevention of disorder and crime, he argued that the policy was disproportionate because, as a prisoner held in a segregated wing, there was no risk that he would have contact with anyone who would be offended by the Easter lily. He further argued that the policy was discriminatory as it unjustly differentiated between two analogous comparators, namely prisoners wishing to wear a poppy and prisoners wishing to wear an Easter lily. 7. On 4 April 2008 the High Court refused his application for leave to apply for judicial review. Relying on earlier case-law, the High Court judge held that any interference with the applicant’s Article 10 rights was proportionate and there had been no discrimination. 8. The applicant appealed to the Court of Appeal. Following the hearing, the court reserved judgment. In its judgment of 3 April 2009, the Court of Appeal indicated that as all the material relied upon was before it, it would apply the procedure under Order 53 Rule 3 and Rule 5(8) of the Rules of the Supreme Court (Northern Ireland) 1980, which permitted it to treat the application as an appeal rather than as a renewed application for leave. Consequently, it granted the applicant leave to apply for judicial review and dismissed the appeal on its merits. It found that: “Conflict emblems in a divided society where the emblems represent one view or the opposite view are by their nature divisive and have the potential to inflame those who do not agree with them. This must be so particularly where the divisions have led to years of violence, even though a period of relative calm has ensued. Many of those caught up in the conflict from both sides inhabit or have inhabited the prisons. Therefore it is necessary and reasonable that the prison service have a policy about the wearing of such emblems which forms part of its policy to prevent disorder within the prison system and which is uniformly applicable. Does the existence of a separated regime within the prison demand that a different policy be applicable in that regime? I do not think that it does. While the likelihood of contact between those with opposing views may be reduced in a separated unit, it cannot be excluded. Whether in a separated regime or not, there will always be contact with members of staff. The Equality Commission considered such conflict emblems had no place in a working environment and a prison should be no different. As part of its policy to prevent disorder the prison service are entitled to have rules relating to emblems which are applicable throughout the prison. As Girvan LJ stated in Re McCafferty’s Application this policy is soundly based. The wearing of an emblem as a mode of expression is a small element of what Article 10 ECHR is designed to protect. The basic tenets of Article 10 are the rights to hold opinions and to impart and receive information and ideas. None of these matters are restricted by the prison policy. Prisoners are permitted to wear Easter Lilies in their cells. The only restriction is that they may not be worn in communal areas. That restriction in the context of Article 10 is a very minimal interference. It is entirely proportionate to the objective of preventing or maintaining good order in a prison. Mr Hutton emphasised that in Re McCafferty’s Application Girvan J expressed the view that the arguments were finely balanced. He submitted that in those circumstances a change of emphasis in one argument should or could tilt the balance. I do not think the arguments are finely balanced. The case for an objective policy on emblems as part of the necessary aim to prevent disorder within a prison and which is applicable throughout the prison, including separated regimes, is substantial if not more so. In my view the policy which is minimally restrictive, complies with Article 10 of the Convention.” 9. On 10 April 2009 the applicant was advised by Counsel that he was unlikely to be granted leave to appeal to the Supreme Court. The applicant has not submitted a copy of Counsel’s advice to the Court as it was confidential and privilege was not waived in respect of it on the applicant’s behalf, save as to indicate that Counsel referred, inter alia, to the number of prisoners affected by the desire to wear the disputed emblem and advised that the case was not one where the test for leave to appeal was likely to be satisfied. 10. Paragraph 4.12 of the Northern Ireland Prison Service Standing Orders dated 3 July 1997 stated that: “Prisoners may not wear emblems, nor should they be displayed by prisoners in their cells.” 11. On 15 March 2000 the Governor of HMP Maghaberry issued a notice to prisoners concerning the wearing of shamrock on St Patrick’s Day and poppies for Remembrance Day. The notice stated that: “These emblems are non-political and non-sectarian and will, in future, be permitted to be worn at the appropriate time by any prisoners who wish to wear them.” 12. This notice echoes the guidance issued to employers by the Northern Ireland Equality Commission, which provided as follows: “Personal Emblems There are some individual emblems and symbols that, through their history and associations, and whether intended or not, have come to have a significance that has the potential to make those of a different identity feel uncomfortable or unwelcome. In this category are likely to fall a variety of symbols and emblems with the potential to cause disharmony, and especially those that have been directly linked to community conflict in Northern Ireland and/or to local politics. These include: • Badges and insignia, e.g. Easter Lilies, Orange symbols ... ... ... There are many ways in which we convey our religious or political identity to others. In this category would fall emblems that may be associated primarily with one religion or community but are not directly linked to community conflict. Such marks of identity are unlikely to be regarded as creating an intimidating or hostile working environment. There are many examples of such emblems, including: • Marks of remembrance, celebration or commemoration (e.g. poppies, shamrock)” 13. The legality of the ban on wearing the Easter lily in Northern Ireland’s prisons has been challenged before the domestic courts on a number of occasions. In the case of In Re John Byers [2004] NIQB 23 the applicant had been charged with a disciplinary offence after he refused to remove an Easter lily. As the applicant was being held in an integrated prison, the High Court found that the ban on the wearing of Easter lilies in communal areas did not violate his rights under Article 10 of the Convention as the interference with his freedom of expression was prescribed by law and was necessary to prevent potential conflict within the prison. 14. The case of In Re McCafferty [2008] NIQB 96 was brought by an applicant who was being held in Roe House, the segregated wing of HMP Maghaberry. He brought judicial review proceedings after he was asked to remove an Easter lily on Easter Sunday and the thrust of his case was that there was a fundamental difference between the position of prisoners in the integrated part of a prison and those housed in the segregated regime. The Prison Service argued that the measures were justified by the imperative of minimising the distinction between integrated and segregated prisoners and preventing the development of paramilitary control. Moreover, they argued that there was a need to protect the rights of persons (other than prisoners) who could come into contact with a prisoner wearing an emblem and to ensure a neutral working environment for prison officers. The High Court concluded that the policy operated by the Prison Service was soundly based as it was entitled to ensure an objectively based system throughout the prison.