WATKINS v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
The applicant, Mr Jeffrey Shane Watkins, is a British national who was born in 1962 and is currently serving a lifesentence in a prison in Rugby. He was represented before the Court by Mr E. Abrahamson, a lawyer practising in Liverpool. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. Between 1 May 1998 and 5 December 2000 the applicant was engaged in a variety of legal proceedings, actual or contemplated, which necessitated correspondence with various legal advisers, courts and other bodies. For the first part of this period he was detained at prison W. and in September 1999 he was moved to prison F. On 16 September 1998, whilst the applicant was being detained in Prison W., he asked the officer on duty for his mail and was told that unless he opened the letters in that officer’s presence he would not be allowed to have them. The applicant pointed out that he was entitled to take his legal correspondence unopened unless the governor had reasonable cause to suspect an illicit enclosure, but the officer refused to give it to him. The officer proceeded to inform the applicant that he would be referring the letters to the principal officer in his wing. On 17 September 1998 another prison officer summoned the applicant to his office and told him that there were two legal letters for him. Each envelope was marked with a reference to Rule 37A of the Prison Rules 1964 (“the Rule,” later replaced by Rule 39 of the Prison Rules 1999, see Relevant Domestic Law below) and each bore a franked strip containing details of the solicitor from whom the correspondence originated. The officer pulled out legal paperwork from a larger envelope which had already been opened. When the applicant complained, the officer told him that the envelope was already open when he had entered the office. The officer then inspected the contents of the envelope before he handed the envelope and the legal papers over to the applicant. The officer then picked up a smaller envelope, opened it, and inspected its contents before handing it over. When the applicant protested about the breach of the applicable Rule, the officer laughed and said “So report me to John Major” (the British Prime Minister between 1990 and 1997). The following day the applicant made a formal complaint about the matter which led to the promulgation of a notice to staff drawing attention to the effect of the Rule in question. On 5 October 1998 the applicant noticed that his name was on a board indicating that he had received mail. When the applicant asked for his mail he was told that there was a letter for him marked with reference to the Rule, but the officer on duty refused to hand it over to him unless he was willing to open it in his presence. Later that day another officer called the applicant and informed him that there was a letter for him. The officer then proceeded to rip the letter open. When the applicant asked him why he was doing this, the officer told him that the new notice mentioned above only applied to outgoing mail. The applicant made a complaint ten days later. On 5 December 2000, whilst the applicant was pursuing County Court proceedings against one of the prison officers, that particular officer opened two letters marked “Durham County Court” addressed to the applicant without the latter’s knowledge or consent. The officer then handed them to the applicant already opened. The applicant made several complaints to the effect that his correspondence, both outgoing and incoming, was being treated by prison officers in a manner that conflicted with the requirements of the Rule. The applicant found his attempts to pursue the matter both through the formal prison complaints systems and the Prisons Ombudsman unsatisfactory, and he was eventually granted legal aid to bring an action for damages in the courts. On 15 July 2003 the County Court gave judgment refusing the applicant’s claims for damages for misfeasance in public office against the Home Office and 14 named prison officers. The judge found that most of the prison officers had committed a breach of the Rule but that they had not acted in bad faith. He found further that some misunderstandings had arisen in prison W. from the fact that although the prison governor had notified both prisoners and prison staff on 21 September 1998 about the effect of the Rule, he had overlooked the fact that the letters which a court sent to a prisoner bore the name of the court on the envelope but contained no reference to Standing Order 5 (see Relevant Domestic Law below). Moreover, the judge was satisfied that some of the officers had opened the relevant letters accidentally and in other cases he ascribed the breach of the Rule to inadequate training. Therefore, the applicant’s claims against those officers failed as bad faith was an essential ingredient of the tort of misfeasance in public office. Though the County Court judge found that three prison officers had, on the balance of probabilities, acted in bad faith when dealing with the applicant’s legally privileged correspondence in breach of the Rule, he was not satisfied that the applicant had suffered any loss or damage as a result. In particular, the judge stated that at its highest, the applicant’s case was that he had suffered embarrassment and injury to his sense of pride and dignity. Without minimising in any way the effect of the breaches of confidentiality in issue, the judge found that the reactions suffered by the applicant came nowhere near to mental, still less physical injury. Neither had there been any allegation of financial loss or actual prejudice to his position in any of the litigation in which he was engaged. Furthermore, having listened to the evidence and seen the applicant in the witness box, it was considered that he had not been particularly embarrassed or humiliated. In sum, the applicant seemed to the County Court judge to be “ a man of some intelligence who had acquired some knowledge of the legal process and, without in any way trivialising his complaints or minimising the effect upon him, ... it could be said that in many ways he appeared to thrive on these conflicts.” An application for permission to appeal was made but refused by the County Court judge. The application for leave to appeal was then renewed before the Court of Appeal and permission to appeal was granted on the papers on 17 October 2003. The applicant appealed against the dismissal of his claims against the three officers who had acted in bad faith, contending that the tort of misfeasance in public office was a tort actionable per se, and so capable of being established without proof of damage, or alternatively capable of being established by proof of anxiety and distress falling short of physical or mental injury. On 20 July 2004 the Court of Appeal gave judgment on the applicant’s appeal against the County Court’s decision of 15 July 2003. The applicant’s appeal was allowed on the ground that, acting in bad faith, the three officers had infringed a constitutional right of such importance, namely, that of unimpeded access to court and access to confidential legal advice, that the applicant’s cause of action in misfeasance in public office was complete even without proof of damage. The Court of Appeal held that the County Court judge’s conclusion on the issue was therefore wrong and that the applicant was entitled at least to nominal damages against the officers who had acted in bad faith. The Court of Appeal further stated that it was for the trial judge and not itself to determine whether exemplary damages should be awarded. The applicant’s appeal was allowed, a nominal award of GBP 5 (British pounds sterling) was entered against the three defendants who had been found to have acted in bad faith and the case was remitted back to the County Court judge to determine whether to make an exemplary award against any of the defendants and if so, for assessment of the sums to be awarded. The Court of Appeal also granted the Home Office leave to appeal to the House of Lords on condition that it paid the applicant’s costs irrespective of the outcome. On 29 March 2006 the House of Lords allowed the Home Office’s appeal and restored the judgment of the County Court judge. The House of Lords found that, though in the present context the unlawfulness of what was done to interfere with the applicant’s enjoyment of his right to confidential legal correspondence was clear, the House should not take the novel step of introducing into the tort of misfeasance in public office a right to damages (based on the importance of the constitutional right infringed) in the absence of material damage to the victim. It was noted in this regard that the great weight of authority treated damage as an element of the tort. Furthermore, it was considered that the applicant had legal remedies available to him, namely, judicial review against prison officers who acted in breach of the applicable rules (even in the absence of bad faith) and the prison governors. Moreover, it was suggested that errant officers would be susceptible to disciplinary sanctions and that failure to initiate such proceedings could also on appropriate evidence be challenged by judicial review, or alternatively that the officers in question might well be indictable for the common law offence of misconduct in public office. The House of Lords also considered that any breach of a fundamental human or constitutional right would be covered by section 7 of the Human Rights Act 1998. It could reasonably be inferred that Parliament had intended that infringements of the core human and constitutional rights protected by the Act should be remedied under it and not by the development of parallel remedies. As it was held that there was no existing right to damages where misfeasance in public office had caused no material damage to the victim, the European Court of Human Rights could be expected to award compensation for non-pecuniary loss in cases where the evidence showed an egregious and deliberate abuse of power by a public officer. Though ultimately agreeing with the majority that the appeal should be allowed, Lord Walker of Gestingthorpe commented that if the Home Office were successful in their appeal, the applicant would have no private law remedy at his disposal and that judicial review would not offer him a prospect of damages. He considered that judicial review, with the preliminary filter of the need for leave and little prospect of obtaining an order for cross-examination of witnesses, was hardly a satisfactory substitute for an action in the county court. The House of Lords ultimately ruled that the tort of misfeasance in public office was never actionable without proof of material damage as its function was to compensate the claimant and not punish the public officer. Consequently, it was held that the Home Office’s appeal should be allowed, that the Court of Appeal’s order should be set aside save as to costs and that the order of the County Court judge should be restored. Rule 39 of the Prison Rules 1999 (SI 1999/728) which replaced rule 37A of the Prison Rules 1964 (SI 1964/388) in identical terms provides as follows: “(1) A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened, read or stopped by the governor in accordance with the provisions of this rule. (2) Correspondence 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 enclosures shall be dealt with in accordance with the other provision of these Rules. (3) Correspondence 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 correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped. (5) A prisoner shall on request be provided with any writing materials necessary for the purposes of paragraph (1). (6) In this rule, "court" includes the European Commission of Human Rights, the European Court of Human Rights and the European Court of Justice; and ‘illicit enclosure’ includes any article possession of which has not been authorised in accordance with the other provisions of these Rules and any correspondence to or from a person other than the prisoner concerned, his legal adviser or a court.” Standing Order 5 includes a direction that an envelope carrying correspondence between an inmate and his/her legal adviser should be marked with a reference to the above Rule. It further explains the effect of the new Rule as follows: “Prison Rule 37A [now Rule 39] ... applies to all correspondence between an inmate and his or her legal adviser or a court (including the European bodies referred to in the Rules). Such correspondence carries special privileges under the Rules and may not be read or opened for examination unless in accordance with instructions laid down by Prison Service Headquarters...” Home Office instruction (113/1995, 21 December 1995) to prison governors requires them to protect such correspondence against inadvertent or deliberate opening by, in particular, the training of staff handling prisoners’ mail. Part 54.3 of the Civil Procedure Rules and section 31 (4) of the Supreme Court Act 1981 contain the relevant rules governing the bringing of a claim for damages in tort in the same proceedings as a judicial review claim. Claims for public law remedies (such as a mandatory order, prohibitory order or quashing order), injunctions or declarations may be made by way of judicial review proceedings. Damages may also be claimed alongside such remedies provided that a cause of action for such damages exists under the law of tort. Since the coming into force of the Human Rights Act 1998 (“HRA 1998”) on 2 October 2000, a court may grant such relief or remedy within its powers as it considers just and appropriate for breaches of Convention rights (section 8 of HRA). In deciding whether to award damages, or the amount of any award, the court must take into account the principles applied by this Court in relation to the award of compensation under Article 41 of the Convention.