Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538

Case No A2/2011/1035

[2011] EWCA Civ 1538

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2010] EWHC 3389 (QB)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Mr Justice Sweeney

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/12/2011

Before

LORD JUSTICE MUMMERY

LORD JUSTICE RICHARDS

LADY JUSTICE BLACK

Between

Leslie MalcolmAppellant

Secretary of State for JusticeRespondent

Phillippa Kaufmann QC (instructed by Bhatt Murphy Solicitors) for Appellant

Oliver Sanders (instructed by Treasury Solicitors) for Respondent

Hearing Hearing date : 16 November 2011

Judgment

Lord Justice Richards :

[1]The appellant is a life sentence prisoner. The appeal concerns the period between 26 April and 2 October 2007 when he was detained in the segregation unit at HMP Frankland. During that period he was provided with an average of around 30 minutes in the open air each day, whereas under paragraph 2(ii) of Prison Service Order 4275 (“PSO 4275”) he should have had the opportunity to spend a minimum of one hour in the open air each day. He subsequently issued proceedings against the Ministry of Justice (“the MoJ”), claiming that the failure to secure him his entitlement under the order was unlawful and that the prison officers at HMP Frankland(1) were guilty of misfeasance in public office and

(2) acted in violation of his rights under

article 8 ECHR

and were therefore in breach of s.6 of the Human Rights Act 1998. Sweeney J, after a two day trial, dismissed both aspects of the claim. The appeal relates only to his decision on article 8.

[2]Whilst the MoJ was the correct defendant for the purposes of the misfeasance claim, as the appropriate authorised government department under s.17 of the Crown Proceedings Act 1947, that section does not apply to the claim under the Human Rights Act 1998 and it is strictly speaking the Secretary of State for Justice who is the relevant public authority and the appropriate defendant for the purposes of that claim. We granted the appellant permission to amend the title of the proceedings accordingly at the hearing of the appeal.

Legal and policy framework

[3]Rule 30 of the Prison Rules 1999, made under s.47(1) of the Prison Act 1952, provides that “[i]f the weather permits and subject to the need to maintain good order and discipline, a prisoner shall be given the opportunity to spend time in the open air at least once every day, for such period as may be reasonable in the circumstances”.

[4]PSO 4275 provided prison staff with guidance on the application of rule 30. It was introduced in 1998, when the Prison Rules 1964 were in force, but was retained as guidance in relation to the Prison Rules 1999. Its material provisions are these: “Mandatory requirements 2. Governors and directors must ensure that:(i) if the weather permits and subject to the need to maintain good order and discipline, a prisoner shall be given the opportunity to spend time in the open air at least once every day, for such period as may be reasonable in the circumstances;

(ii) prisoners subjected to a severely restricted regime (e.g. those held in the segregation unit as a punishment or under Rule [45] in the interests of good order or discipline) are provided with the opportunity to spend a minimum of one hour in the open air each day …. … Health Care advice 3. Health Care advice is that ideally prisoners should have the opportunity to spend at least an hour in the open air each day and that the period allowed should not normally be less than half an hour.” (i) if the weather permits and subject to the need to maintain good order and discipline, a prisoner shall be given the opportunity to spend time in the open air at least once every day, for such period as may be reasonable in the circumstances; (ii) prisoners subjected to a severely restricted regime (e.g. those held in the segregation unit as a punishment or under Rule [45] in the interests of good order or discipline) are provided with the opportunity to spend a minimum of one hour in the open air each day ….

Health Care advice

[5]PSO 4275 was replaced with effect from 1 April 2011, after judgment in the present claim, by Prison Service Instruction 10/2011 (“PSI 10/2011”). Para 1.15 of PSI 10/2011 states that prisoners must be afforded time in the open air in accordance with the Instruction. In a section on “specification outputs”, para 2.21 provides (with original underlining and italics):

“Prisoners are afforded a minimum of 30 minutes in the open air daily, as defined in the SLA/Contract. This provision is mandatory subject to weather conditions and the need to maintain good order and discipline ..... … The previous mandatory requirement for prisoners on restricted regimes to have 60 minutes in the open air is withdrawn. However, Governors will be required by their SLA/Contract to continue to provide a minimum of 60 minutes activity for such prisoners, of which at least 30 minutes must be in the open air.”

[6]The move from a mandatory requirement of 60 minutes in the open air for prisoners on restricted regimes to a mandatory requirement of 30 minutes does not have any direct impact on the appellant’s case, which is firmly rooted in the effect of PSO 4275 as the policy in force at the material time.

The facts

[7]Sweeney J’s judgment includes extensive findings of fact, including the following material points:

“18. … HMP Frankland is a high security prison. It houses long term prisoners who are mostly Categories A and B. At all material times in 2007 there were 6 Wings and a Segregation Unit at the prison. 19. Four of the wings (A-D) were for vulnerable prisoners, such as those (like the Claimant) convicted of sex offences. Each of these Wings had a maximum capacity of 108 prisoners, each of whom had his own cell measuring approximately 12 foot long by 7 foot wide by 8 foot high (the same size as the cells in the other 2 Wings). 20. A Wing was for prisoners who had earned enhanced status for good behaviour. B and C Wings were for other vulnerable prisoners. D Wing was for those undergoing induction onto the vulnerable prisoner Wings. 21. There was a substantial outside exercise yard for the exclusive use, one Wing at a time, of the prisoners in A-D Wings. There were no problems with their exercise regime. 22. Such prisoners, if they wished, received a minimum of one hour in the open air each day – typically made up of 30-45 minutes in the exercise yard, and other movements around the prison. … 24. On arrival at HMP Frankland on 26 April 2007 the Claimant refused, without giving any reason, to locate on to a Wing, and said that he would only go to the Segregation Unit. Therefore, as he knew that he would be, the Claimant was placed in the Segregation Unit under Rule 45, for good order or discipline. … 26. The Claimant remained in the Segregation Unit until 2 October 2007 when he was transferred to HMP Whitemoor. Thus he was housed in the Segregation Unit at HMP Frankland for some 159 days in all. 27. The Segregation Unit was built at a time when the prison was significantly smaller. The Unit contained 28 cells – each the same size as those in the remainder of the prison, and thus large enough for in-cell exercise. 28. The Segregation Unit had its own outside exercise yard, which was about the size of a standard tennis court. At some point in the past, the exercise yard was divided into two by wire mesh, thus providing two caged areas of roughly equal size – each for the use of a single prisoner at a time. 29. In about the late 1980s, and before the full recognition of the value of risk assessments, the practice began of permitting prisoners in the Segregation Unit to take exercise in pairs in the two caged areas. However, this resulted in episodes of violence against both prisoners and prison officers, and was eventually stopped. 30. At around that time, consideration was given to further dividing the exercise yard into four caged areas, but that idea was rejected as it was decided that the resultant areas would be too small. … 40. During the 159 day period when the Claimant was in the Segregation Unit there were, on average, some 19 prisoners housed in the unit each day. Some 8 or 9 Prison Officers worked there during both the morning and afternoon shifts. 41. Given the nature of those who were housed in the Segregation Unit, a ‘one in, one out’ policy was necessarily in operation throughout the 159 days. This meant that only one prisoner at a time was allowed out of his cell, and required at least 2 Prison Officers to supervise each movement. At the top end of the security scale, some movements required supervision by a number of officers dressed in full protective equipment. 42. During the 159 days, the daily regime in the Segregation Unit was broadly as follows. From about 8.15am to 8.45am the prisoners were unlocked, one at a time, and provided with breakfast. At that stage, if they wished to, they could make application, variously, for outside exercise, a shower, a razor, a cell clean out, use of the library, healthcare, an evening phone call, or a visit. Lunch was provided, again one prisoner at a time, from about 11.45am to 12.15pm. The prisoners would all then remain locked in their cells until about 1.30 to 1.45pm, whilst the staff had their lunch. The prisoners would all then be locked up again at about 3.30pm – 3.45pm, being let out thereafter, again one at a time, only for their evening meal and to make telephone calls. 43. Once all the applications for the day had been made at breakfast time, officers then gave consideration as to the amount of time that could be allotted to each prisoner who wished to take exercise in the yard. In accordance with the regime, the broad time periods available for such exercise were from about 8.45am to 11.45am and from about 1.30pm – 1.45pm to 3.30pm – 3.45pm. In theory this gave a time period of a little over 5 hours for time in the fresh air, and thus (given the use of the two caged areas each occupied by only one prisoner at a time) the theoretical possibility that if there were up to 10 applicants, each of them could have an hour in the fresh air. However in allotting exercise periods, consideration had to be given to the time limitations imposed by the necessary ‘one in, one out’ policy, the practicalities of staff involvement in all the other movements and activities taking place during the particular day, and the imperative for CSC [Close Supervision Centre] prisoners to be given a full hour of exercise alone. In addition, the regime under which an applicant for exercise was being held also had to be considered. For example, and for obvious reasons, a prisoner in the Segregation Unit for his own protection could not be placed in one of the caged areas whilst a prisoner who was in the unit for reasons of good order and discipline was in the adjacent caged area. Equally, the process necessarily had to remain subject to any other operational needs, and therefore be dynamic, as the day progressed. Thus, if there were more than about 6 or 7 applicants on a particular day (as was typically the case, up to as many as 14-17 applicants) then (in view of the space available and the various operational requirements outlined above) at least some of the applicants could not be allocated a full hour of exercise, though all were given at least around half an hour. … 46. Excluding the days of the Claimant’s arrival and departure, when exercise in the open air would not have been practicable, there were thus 157 days on which he could have applied for and been given exercise. On 4 of those days (29 April, 1 May, 9 September and 22 September) he either failed to submit an application or, having applied, then declined. As to the remaining 153 days, the great majority of which involved high occupancy of the Unit, the Claimant was generally given around 30 minutes exercise in the open air each day, and regularly longer, but not a full hour. 47. The Claimant was not alone in failing to receive a full hour’s exercise during those 153 days – on a few of which only a relatively small number of prisoners applied for exercise. For example, on 28 August 2007 there were only 6 applicants for exercise out of 13 prisoners then housed on the Unit, yet two received only a maximum of 45 minutes exercise, and the Claimant and another received a maximum of 50 minutes exercise. 48. Thus during the time that the Claimant was in the Segregation Unit, the Unit did not fully comply with paragraph 2(ii) of PSO 4275.”

[8]The judge went on to record at [49] that the appellant was the only prisoner who made complaints about that failure. He gave details of a number of formal written complaints, including letters of complaint to the Prisons and Probation Ombudsman for England and Wales. On 21 September 2007 the Acting Deputy Ombudsman wrote to the appellant upholding his complaint and stating: “There is no dispute that Frankland is not complying with the mandatory requirements in PSO 4275 that persons held in segregation units have the opportunity to spend at least an hour in the open air each day. It is clear that staff there are aware of this requirement, but are unable to comply with it due to the high level of occupancy, the restrictions on the number of persons who can be out in the exercise yard at any one time, and the fact that certain persons cannot be allowed to exercise with others. I understand the difficulties faced by staff in trying to allow persons in the segregation unit a full hour’s exercise each day. I accept that, from time to time, this may not prove possible. However, it should be the exception rather than the norm. In this respect I am upholding your complaint. I am therefore copying this letter to the Governor of Frankland so that he may note my concerns, and consider what steps can be taken to ensure that prisoners in the segregation unit have the opportunity to spend at least one hour in the open air even in times of high occupancy.” (The judge had previously noted at [34] that in August 2004, during a previous period in the segregation unit at HMP Frankland, the appellant had likewise complained on two occasions that he had been given only 30 minutes’ exercise whereas his basic entitlement was 60 minutes.)

[9]At [51] the judge dealt further with the question of transfer from the segregation unit to a normal location within the prison. His findings of fact included(i) that the appellant refused such a move on arrival at HMP Frankland and thereafter, and

(ii) that in truth, and for his own reasons, the appellant never wanted at any stage to leave the segregation unit, because he knew that if he remained within it he would eventually be transferred to another prison; he also knew that if he did transfer to one of the vulnerable prisoner Wings there would be no problem in achieving an hour in the fresh air each day. The judge gave further details of the appellant’s opposition to a move to another Wing. He found that a formal request made by the appellant on 11 July 2007 to move to another Wing was not a genuine request and that the appellant turned down subsequent offers of accommodation for no good reason.

[10]At [51] he made findings as to other events during the appellant’s stay at HMP Frankland. They included these:

“(i) The Claimant was able to exercise in his cell, when he wished to, and did so. … (iii) Contrary to his complaints at the time, and to his evidence, the Claimant suffered no adverse effect on his health, physical or mental, as alleged or at all, as a result of the lack of a full hour of fresh air each day. Nor, for the avoidance of doubt, did he suffer any anxiety, stress or distress as a result of it either ….”

[11]The judge found at [52(ii)] and [53] that from around 18 July 2007 onwards the prison authorities took steps to find the appellant a place at another prison; and that on 2 October 2007, eleven days after the Acting Deputy Ombudsman had upheld his complaint, he was transferred to HMP Whitemoor where he immediately chose to be placed on a normal location Wing.

[12]One relevant factual matter which post-dates the appellant’s stay at HMP Frankland and which was not known to Sweeney J at the time when he gave judgment concerns changes to the exercise yard at the segregation unit at HMP Frankland. The annual report of the prison’s Independent Monitoring Board, for the period 1 December 2009 to 20 November 2010, states that recent improvements to the exercise yard now allow four prisoners (previously two) to take exercise at the same time, thus doubling the exercise availability of the unit. The judge’s decision on article 8

[13]Article 8 provides:

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[14]The appellant’s case is that the failure to provide the appellant with his entitlement under PSO 4275 to one hour’s exercise in the open air constituted an unjustified interference with his article 8 rights. The judge rejected that case on the ground, first, that there was no interference with the appellant’s rights under article 8(1). He said this:

“136. As I have found above, the Claimant did spend around thirty minutes, and regularly longer, in the fresh air on each of the 153 days that he took exercise. Equally, I have found that the Claimant suffered no detrimental effects at all to his health or wellbeing. Equally, I have found that he chose from the outset, and for his own reasons, to get himself moved to another prison by staying in the Segregation Unit – rather than moving to a vulnerable prisoner Wing, where (as he knew) he would immediately have been able to have more time in the fresh air. Despite the unreasonable nature of his actions, the Claimant’s autonomy was respected. It also seems to me that there is some force in Mr Sanders’ argument [for the MoJ] as to the difficulty in deriving from Article 8 a rule that prisoners in segregation should be given 30 minutes as opposed to 60 minutes in the fresh air each day. At all events, I conclude that, on the particular facts that I have found, not least that he was the author of his own misfortune, any impact on the Claimant’s Article 8 right to respect for his private life did not attain the necessary ‘level of seriousness’ to amount to an interference and thus to a potential breach of Article 8.”

[15]The judge also went on briefly to consider the application of article 8(2) in the event that article 8(1) was engaged. He said at [140] that, broadly accepting the arguments advanced on behalf of the defendant, he inclined to the view that there was proportionate justification for such interference as there was, which met the legitimate aims of public safety, the prevention of crime or disorder, the protection of health of morals and/or the protection of the rights and freedoms of others. (The arguments on behalf of the defendant included reference to the operational and security judgments of the prison authorities, and I should note that this reflects a point also mentioned in an earlier section of the judgment, at [101]-[104], in the context of the misfeasance claim. In that section the judge considered whether the acts and omissions of the prison officers were unlawful. He said that he was persuaded, for the reasons advanced in argument on behalf of the defendant, that the acts and omissions were not unlawful. One of those reasons was that there were valid public interest grounds for departing from PSO 4275, namely sound operational and security reasons for the restricted regime at times of high occupancy.)

[16]On the premise that, contrary to his findings, there was a breach of article 8, he said at [144] that he had no doubt that this was not a case for damages and that in the particular circumstances the appellant was awarded just satisfaction by the finding of the Acting Deputy Ombudsman and by being moved to another establishment. If he was wrong about that, then he would have concluded that a judgment in the appellant’s favour would have afforded just satisfaction instead.

The case for the appellant

[17]On the question whether there was an interference with the appellant’s rights under article 8, the submissions made by Miss Kaufmann QC on behalf of the appellant may be summarised as follows:(1) A prisoner does not forfeit his Convention rights, save the right to liberty, by virtue of his conviction and sentence for a criminal offence: see, for example, Raymond v Honey

[1983] 1 AC 1

, Hirst v United Kingdom

(2006) 42 EHRR 41

, Dickson v United Kingdom

(2008) 46 EHRR 41

. For illustrations of the potential application of article 8 (over and above the requirements of article 3) to the physical conditions and detention regime within a prison, see McFeeley v United Kingdom

(1980) 3 EHRR 161

and Van der Ven v Netherlands

(2004) 38 EHRR 46

(2) Article 8 protects a broad range of interests: see Pretty v United Kingdom (2002) 35 EHHR 1 at [66] (where the Strasbourg court stated that “private life” is a broad term not susceptible to exhaustive definition but that it covers inter alia a person’s physical and psychological integrity); R (Wood) v Commissioner of Police of the Metropolis

[2010] 1 WLR 123

at [21]-[22] (where Laws LJ concluded that the concept which underpins the cases is that of personal autonomy); R (Countryside Alliance) v Attorney General

[2008] 1 AC 719

at [10]-[11], [15(1)], [54]-[55], [90]-[108], [115]-[116] and [138]-[141] (where the House of Lords engaged in extensive discussion of the concept); and Countryside Alliance v United Kingdom

(2010) 50 EHRR SE6

at [40]-[43] (where the Strasbourg court inter alia approved what Lord Rodger had said in the House of Lords about the distinction to be drawn between carrying out an activity “for personal fulfilment” and carrying out the same activity for a public purpose where one cannot be said to be acting for personal fulfilment alone).

(3) Exercise in the open air relates to an interest of the sort which article 8(1) is intended to protect. It provides an opportunity for a form of self-realisation that is not otherwise available. Its importance is greatly magnified in the context of a prisoner otherwise locked away alone in the confines of a small cell 24 hours a day: as to the serious adverse effects liable to result from solitary confinement, see Sharon Shalev, A sourcebook on solitary confinement (London School of Economics, 2008), a publication which was not before Sweeney J. Something that has the potential to mitigate those adverse effects has a real value in the context of article 8.

(4) It is not necessary for the purposes of the appellant’s case, and is no part of his case, that article 8 lays down a specific entitlement to at least one hour’s exercise in the open air (though Miss Kaufmann said that the point would be open to argument, supported by the fact that international human rights instruments require that prisoners be provided with the opportunity to spend at least one hour in the open air daily: see rule 20(1) of the United Nations Standard Minimum Rules for the Treatment of Prisoners, and rule 27(1) of the European Prison Rules). The way the appellant’s case is put is that the State is under a positive obligation to take steps to secure the enjoyment of prisoners’ rights under article 8 (see e.g. Dickson, cited above, at [70]), and that that is precisely what the Secretary of State did by adopting the policy in PSO 4275. The specific entitlement to one hour in the open air derives from the terms of the policy and does not need to be derived directly from article 8 itself.

(5) The deprivation of the appellant’s entitlement by up to half an hour each and every day for five months, during which he was subject to the regime of the segregation unit and was otherwise locked up in solitary confinement all day, was a sufficiently severe interference with his protected interest to engage article 8. The fact that, for reasons of his own, the appellant was in the segregation unit by his own choice is irrelevant. He was still entitled to one hour in the open air while he was there. His repeated complaints show that it mattered to him. The importance of time in the open air is not diminished by the fact that, on the judge’s findings, the appellant did not suffer any ill effects from the failure to allow him the time to which he was entitled.

[18]Accordingly, in Miss Kaufmann’s submission, there was an interference with the appellant’s rights under article 8(1) which required justification under article 8(2). Such justification is said to have been lacking for the following reasons:(1) The interference was not “in accordance with the law”, since the failure to afford the appellant his entitlement under PSO 4275 constituted a departure without good reason from the Secretary of State’s published policy and was therefore unlawful as a matter of domestic law: see R (WL (Congo)) v Secretary of State for the Home Department

[2010] 1 WLR 2168

at [57]-[58] (Court of Appeal) and R (Lumba) v Secretary of State for the Home Department

[2011] 2 WLR 671

, in particular at [26], [170], [190] and [202] (Supreme Court); see also R (Lowe) v Governor of Liverpool Prison

[2008] EWHC 2167 (Admin)

at [33]-[36]. The evidence overwhelmingly established in this case that there was no good reason for departure from the policy, and to the extent that the judge found otherwise his finding was against the weight of the evidence and was perverse. If the departure from the policy was unlawful as a matter of domestic law, then it was not in accordance with the law for the purposes of article 8.

(2) Further, whilst operational and security reasons are capable in principle of justifying the provision of less than the full entitlement to exercise in the open air, the judge’s finding on proportionality was flawed. If there was no good reason for departing from the terms of PSO 4275, the Secretary of State is unable to demonstrate that the interference was a necessary and proportionate means of achieving any legitimate purpose. The judge wrongly accepted at face value the claim that there was no safe and practical alternative to the regime. He also set an unduly low standard of justification.

[19]As to the question of just satisfaction, Miss Kaufmann said that the appellant was not appealing the judge’s finding that this was not a case for an award of damages, but she submitted that the upholding of the appellant’s complaint by the Acting Deputy Ombudsman was not enough. A judicial finding of violation of the appellant’s article 8 rights would, however, provide just satisfaction. The issues raised in the appeal are therefore of continuing interest to the appellant, as well as being of importance for other prisoners.

The case for the Secretary of State

[20]Mr Sanders, for the Secretary of State, accepted that the exercise regime did not comply with PSO 4275 and that this should not have been allowed to happen, but submitted that the correct way of resolving the matter was through the complaint to the Prisons and Probation Ombudsman and not by way of proceedings under article 8. On the application of article 8 he supported the judge’s conclusion.

[21]As to the question whether article 8(1) was engaged, he submitted in summary as follows:(1) It was the appellant’s deliberate choice to stay on the segregation unit even though he knew of the limitations of the exercise regime there. The judge found that he had no good reason for staying there and, in effect, that it was part of his design to achieve transfer to another prison. Had he so wished, he could have had a minimum of one hour in the open air each day by moving to a wing. As it was, his choice and personal autonomy were respected. Article 8(1) was simply not engaged.

(2) Article 8 confers no entitlement to a minimum of one hour in the open air. The appellant’s attempt to derive such an entitlement from the interaction between article 8 and PSO 4275 is misconceived. Either article 8 imposes a positive obligation to ensure a minimum of an hour or it does not; and if it does not, the adoption of a policy providing for a minimum of an hour cannot create an entitlement under article 8.

(3) Time in the open air cannot be considered integral to the identity or autonomy of an individual, and in any event the provision of 30 minutes rather than 60 minutes in the open air did not amount to a threat to, or assault on, the appellant’s personal autonomy. For the scope of article 8(1), Mr Sanders referred in particular to R (Countryside Alliance) v Attorney General at [92], [101] and [115]-[116]; Countryside Alliance v United Kingdom at [41]; and R (Wood) v Commissioner of Police of the Metropolis at [21]-[22].

(4) If there was an interference with a protected interest, or what might be capable in principle of being a protected interest, it was not sufficiently serious to engage article 8(1): for the “sufficiently serious” test, see Costello-Roberts v United Kingdom

(1995) 19 EHRR 112

at [36], and M v Secretary of State for Work and Pensions

[2006] UKHL 11

[2006] 2 AC 91

at [82]-[83]. The appellant had 30 minutes in the open air in any event and, on the judge’s findings, did not suffer any adverse effects from having only 30 minutes rather than 60 minutes. The difference between 30 minutes and 60 minutes is below the article 8(1) threshold.

[22]If, contrary to those submissions, there was an interference with the appellant’s rights under article 8(1), Mr Sanders submitted that the interference was justified. His response to the way Miss Kaufmann put the appellant’s case on article 8(2) was as follows:(1) The appellant’s contention that the interference was not “in accordance with the law” is a new argument, not advanced before the judge. It is wrong for a number of reasons.

(2) First, the “in accordance with the law” requirement is met by the fact that the appellant was lawfully confined and dealt with in accordance with the Prison Act 1952 and the rules made under it. PSO 4275 does not count for this purpose: a finding that the failure to comply with it was unlawful as a matter of domestic public law would not mean that the interference was not “in accordance with the law” within article 8(2); a proposition for which Mr Sanders sought to derive support from Chappell v United Kingdom

(1990) 12 EHRR 1

at [54]..

(3) Secondly, there was no public law unlawfulness here. It cannot be the case that a departure from each and every policy concerning the detailed running of the prisons will be unlawful unless justified as being for good reason: R (Lumba) v Secretary of State for the Home Department is distinguishable as regards the type of policy in issue. But if good reason has to be shown, the judge’s findings establish it: see in particular his judgment at [29]-[30], quoted at [7] above. There were sound operational and security reasons for the decision taken; there was no practical alternative that could be implemented then and there; the decision fell within the discretionary area of judgment of the prison staff; and the fact that a change to the exercise yard has since been made for practical reasons does not mean that the departure from the policy lacked good reason at the time in question. As to the absence of any evidence that consideration was given at the time to ways of providing those on the segregation unit with 60 minutes rather than 30 minutes in the open air, Mr Sanders submitted that this was attributable to the way the appellant’s case was put prior to the trial and therefore the basis on which the defence evidence was prepared.

(4) The same points were relied on in relation to the issue of proportionality, where Mr Sanders again submitted that the judge’s finding was correct. He said that if there was an interference sufficient to engage article 8(1), it was still not a particularly significant one and that justification under article 8(2) need only be at the same level. A broad and flexible approach is called for to the issue of justification: see R (Countryside Alliance) v Attorney General at [121]-[124] per Baroness Hale.

[23]Finally, Mr Sanders submitted that if just satisfaction was required it had already been afforded, as the judge found. He referred to passages in the judgment of Lord Woolf CJ in Anufrijeva v Southwark London Borough Council

[2004] QB 1124

, in particular at [80]-[81], in support of the submission that the appellant’s article 8 claim should not have been pursued through litigation of this sort.

Discussion

[24]I had an initial concern as to the appropriateness of our entertaining this appeal at all, given the absence of any specific ground of appeal against the judge’s finding that, if there was a breach of article 8, the appellant had already been afforded just satisfaction. But I am satisfied that, in circumstances where there has been no finding to date of breach of the appellant’s rights under article 8, he does have a continuing interest in securing such a finding even though he does not seek any further remedy, and also that the issues raised by the appeal are of sufficient potential importance for other prisoners to justify our adjudicating on them.

[25]I am in agreement with the broad thrust of the Secretary of State’s submissions that article 8(1) is not engaged; but if I am wrong about that, then it seems to me that the Secretary of State faces serious problems on the issue of justification under article 8(2).

[26]The authorities cited by counsel show not only the breadth of article 8 but also its elusiveness and how difficult it can sometimes be to determine whether a particular situation falls within it or not. Without attempting elaborate discussion of the point, I am prepared to accept in general terms that enjoyment of exercise in the open air is capable in principle of constituting an interest protected by article 8 and that it may have a particular significance in the context of prison life and all the more so in the context of solitary confinement in a segregation unit. But if one focuses, as one must, on the particular facts of the case, then for several reasons I take the view that article 8(1) was not engaged by the exercise regime in the segregation unit at HMP Frankland about which the appellant complains.

[27]First, as the judge found, the appellant did get around 30 minutes’ exercise in the open air each day, and regularly longer, though not a full hour. The appellant has to show that article 8 conferred on him directly or indirectly an entitlement to a full hour. I do not see how such an entitlement can be derived from article 8. Miss Kaufmann did not seek to derive it directly from the article; and whilst she said that the point would be open to argument, I am highly sceptical about the basis upon which she said such an argument might be mounted. In any event her case, in effect, was that specific content was given to the article 8 right by the Secretary of State’s adoption of PSO 4275, providing for a minimum of one hour in the open air. If that were correct, however, then the specific content of the article 8 right would have been changed to an entitlement of only 30 minutes by the Secretary of State’s subsequent decision to withdraw PSO 4275 and to replace it with PSI 10/2011, providing for a minimum of 30 minutes. It cannot be correct to work backwards in that way, so that the content of an article 8 right is determined by a discretionary national policy which is subject to change from time to time. Miss Kaufmann sought to get round that problem by arguing that the adoption of PSO 4275 was in fulfilment of the positive obligation on the State to take steps to secure the enjoyment of prisoners’ rights under article 8. That could only work, however, if there were a positive obligation under article 8 to secure an entitlement to one hour’s exercise in the open air each day; but, as I have said, Miss Kaufmann did not put her case that high.

[28]Even if the appellant could establish that he had a protected interest carrying with it, for the purposes of article 8, an entitlement to one hour’s exercise in the open air each day, I do not think that there was a sufficiently serious interference with that protected interest to engage article 8(1). There was far from a complete denial of exercise in the open air. He had around 30 minutes or more in the open air each day. On the judge’s findings, the fact that he did not receive the full entitlement had no adverse effect on his physical or mental health; and notwithstanding the complaints he made, it did not even cause him any anxiety, stress or distress. Moreover, it was by his own choice that he remained in the segregation unit and subject in practice to the limited exercise regime there. On the judge’s findings, there was no good reason why he remained there and it was open to him to move to a wing where he would have received a minimum of one hour in the open air each day. Taking all those matters together, I do not think that the failure to allow him the full hour’s entitlement could be said to have been of sufficient seriousness to constitute an interference within article 8(1).

[29]The fact that the appellant chose without good reason to remain in the segregation unit, so that the loss of the full hour in the open air was the result of his own deliberate decision, might well be enough in itself to justify the conclusion that there was no interference within article 8(1). In McFeeley v United Kingdom the applicants complained that their prison conditions were in violation of their rights under article 8. The government countered that the complaints were part of a propaganda campaign and that most of the matters complained of were the direct consequence of the prisoners’ own acts. That argument was accepted at least in part by the European Commission of Human Rights, which stated in its decision, at [80]:

“The Commission considers that the facts complained of in the first and last of these complaints (i.e. the slopping out procedures and the use of the chamber pot in the cell) are attributable to the actions of the applicants themselves in the furtherance of their protest. It must again be observed that if they had to slop out either naked or covered only in a blanket or towel, it was because of their persistent refusal to wear prison clothes. In the same way, the use of a chamber pot in the cell both day and night is the direct result of their decision in early 1978 not to avail themselves of the toilet facilities and to intensify their campaign. Accordingly, in these respects the Commission does not find that there has been an interference with respect for their private lives.”

This is not such an extreme case as McFeeley. Even in the segregation unit the appellant should have had the opportunity for an hour’s exercise in the open air each day. But the fact is that he chose to remain in the unit when he knew that the regime as operated in practice did not provide the full hour, and in those circumstances the shortfall can properly be described as the direct result of his own decision not to move to a wing. On the approach of the Commission in McFeeley, that would seem to be a sufficient basis for concluding that there was no interference with his article 8(1) rights, though my own conclusion to that effect has a wider basis to it.

[30]Accordingly, for much the same reasons as those given by Sweeney J, though I have packaged them differently, I agree with his conclusion that the exercise regime in the segregation unit did not constitute an interference with the appellant’s article 8(1) rights and that the appellant’s claim under article 8 must therefore fail.

[31]If, contrary to that conclusion, article 8(1) was engaged on the facts of this case, then I take a different view from Sweeney J as to the application of article 8(2). I am persuaded by Miss Kaufmann’s submissions that, if there was an interference within article 8(1), it could not be justified under article 8(2), in particular because it could not be shown to have been “in accordance with the law”. The lawfulness of the regime operated in the segregation unit at HMP Frankland seems to have been argued before the judge in the context of the misfeasance claim rather than of article 8(2); but even if not argued in this way below, the point is in my view properly open to Miss Kaufmann in relation to article 8(2) on the appeal.

[32]PSO 4275 was a published policy to guide the exercise of prison officers’ discretion under rule 30 of the Prison Rules 1999. The prison officers at HMP Frankland failed to give effect to the mandatory requirements of PSO 4275 as regards the opportunity to be given to those in the segregation unit to spend a minimum of one hour in the open air. If they did not have good reason for that failure, I have little doubt that in a public law challenge they would be found to have acted unlawfully. One does not need to look further than the passages in R (Lumba) v Secretary of State for the Home Department cited by Miss Kaufmann for the proposition that a decision-maker must follow his published policy unless there are good reasons for not doing so; a proposition that applies equally to a policy published by the Secretary of State for the guidance of those exercising powers under rules made by him (I do not accept Mr Sanders’s submission that policies relating to the detailed running of the prisons are distinguishable). When determining whether an interference is “in accordance with the law”, even the Strasbourg court looks at domestic law (see, for example, Eriksson v Sweden

(1989) 12 EHRR 183

at [62]-[63]); a fortiori the national court must look at domestic law when deciding whether the requirement is satisfied; and I can see no possible basis for contending that the principles of public law do not form part of domestic law for this purpose.

[33]The matters referred to by the judge, in particular at [41]-[43] of his judgment, show the operational and security issues faced by the prison officers at the segregation unit, given the limited flexibility afforded by the exercise yard as configured. The difficulty about the contention that there was good reason for the failure to follow the policy, however, is that there was no evidence before the judge that consideration was given to the possibility of making alterations to the facilities so as to enable compliance with the policy. As the judge recorded at [30], the idea of dividing the exercise yard into four caged areas had been rejected in the late 1980s. But that was a long time ago. There was nothing to show that the question had been considered afresh since then and in particular during the period of the appellant’s stay in the segregation unit in 2007, when he was repeatedly complaining about the exercise regime. Yet it is now known that improvements have since been made to the exercise yard so as to allow four prisoners to take exercise at the same time (see [12] above). There may well be additional evidence available which would put the matter in a different light, but it was for the Secretary of State to adduce at trial the evidence relied on for the purposes of justification under article 8(2), and on the limited material actually placed before the court I do not think that good reason was established for the departure from the policy

[34]If, on the other hand, good reason could be shown, so that the departure from the policy was lawful and the “in accordance with the law” requirement was met, then I do not think that any further difficulty would arise in establishing justification under article 8(2). The matters relied on as constituting good reason would also weigh in the Secretary of State’s favour in the proportionality balance; and although, on the hypothesis here under consideration, there would have been a sufficiently serious interference with the appellant’s rights to engage article 8(1), the interference would not be such as to require very weighty factors to justify it.

Conclusion

[35]For the reasons I have given in relation to article 8(1), I would dismiss the appeal.

Lady Justice Black :

[36]I agree.

Lord Justice Mummery :

[37]I also agree.