King & Ors, R (on the application of) v Secretary of State for Justice [2012] EWCA Civ 376

“3(1) The aim of a Young Offender Institution shall be to help offenders to prepare for their return to the outside community. (2) The aim mentioned in paragraph 1 shall be achieved, in particular, by – (a) providing a programme of activities, including education, training and work designed to assist offenders to acquire or develop personal responsibility, self discipline, physical fitness, interests and skills and to obtain suitable employment after release; (b) fostering links between the offender and the outside community; and (c) co-operating with the services responsible for the offender’s supervision after release. … 6(1) There shall be established at every Young Offender Institution systems of privileges approved by the Secretary of State and appropriate to the classes of inmates thereof and their ages, characters and circumstances, which shall include arrangements under which money earned by inmates may be spent by them within the Young Offender Institution. (2) Systems of privileges approved under paragraph 1 may include arrangements under which inmates may be allowed time outside the cells and in association with one another, in excess of the minimum time which, subject to the other provisions of these Rules apart from this Rule, is otherwise allowed to inmates at the Young Offender Institution for this purpose. … 37(1) An inmate shall be occupied in a programme of activities provided in accordance with Rule 3 which shall include education, training course, work and physical education. … (4) An inmate may be required to participate in regime activities for no longer than the relevant period in a day, ‘the relevant period’ for this purpose being – (a) on a day in which an hour or more of physical education is provided for the inmate, 11 hours; (b) on a day in which no such education is provided for an inmate, 10 hours; or (c) on a day in which a period less than an hour of such education is provided for the inmate, the sum of 10 hours and a period of such education provided, Provided that he may not be required to participate in any one regime activity for more than eight hours in a day. 38(1) Provision shall be made at a Young Offender Institution for the education of inmates by means of programmes of class teaching or private study within the normal working week and, so far as practicable, programmes of evening and weekend educational classes or private study. The educational activities shall, so far as practicable, be such as will foster personal responsibility and an inmate’s interests and skills and help him to prepare for his return to the community. (2) In the case of an inmate of compulsory school age, arrangements shall be made for his participation in educational training courses for at least 15 hours a week within the normal working week. … 39(1) Provision shall be made at a Young Offender Institution for the training of inmates by means of training courses, in accordance with directions of the Secretary of State. (2) Training courses shall be such as will foster personal responsibility and an inmate’s interests and skills and improve his prospects of finding suitable employment after release. … 40(1) Work shall, so far as practicable, be such as will foster personal responsibility and an inmate’s interests and skills and help him to prepare for his return to the community. 41(1) Provision shall be made at a Young Offender Institution for the physical education of inmates within the normal working week, as well as evening and weekend physical recreation. The physical education activities shall be such as will foster personal responsibility and an inmate’s interests and skills and encourage him to make good use of his leisure on release.”

“3. The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life. … 8(1) There shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there, which shall include arrangements under which money earned by prisoners in prison may be spent by them within the prison … 29(1) If circumstances reasonably permit, a prisoner aged 21 years or over shall be given the opportunity to participate in physical education for at lest one hour per week. 30 If the weather permits and submit 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. 31(1) A convicted prisoner shall be required to do useful work for not more than 10 hours a day, and arrangements shall be made to allow prisoners to work, where possible, outside the cells and in association with one another … 32(1) Every prisoner able to profit from the educational facilities provided at a prison shall be encouraged to do so. (2) Educational classes shall be arranged at every prison and, subject to any direction of the Secretary of State, reasonable facilities shall be afforded to prisoners who wish to do so to improve their education by training, by distance learning, private study and recreational classes, in their spare time.”

“… the applicant was contesting the lawfulness of restrictions imposed on a series of rights commonly recognised to prisoners … at least some of the serious restrictions laid down by the decrees … - such as the one restricting his contact with his family and the ones affecting his finances – certainly fell within the sphere of personal rights and were therefore civil in nature.”

“2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.”

“25.1 The regime provided for all prisoners shall offer a balanced programme of activities. 25.2 The regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.”

“… some of the restrictions alleged by the applicant – such as those restricting his contact with his family and those affecting his pecuniary rights – clearly fell within the sphere of personal rights and were therefore civil in nature (see Ganci …).”

“The Court is well aware that it is essential for States to retain a wide discretion with regard to the means of ensuring security and order in the difficult context of prison … Any restriction affecting these civil rights must be open to challenge in judicial proceedings, on account of the nature of the restrictions (for example, a prohibition on receiving more than a certain number of visits from family members each month or the ongoing monitoring of correspondence and telephone calls) and of their possible repercussions (for instance, difficulty in maintaining family ties or relationships with non-family members, exclusion from outdoor exercise). By this means it is possible to achieve the fair balance which must be struck between the constraints facing the State in the prison context on the one hand and the protection of prisoners’ rights on the other.”

“The Court observes that, while it is true that a prisoner cannot challenge per se the merits of a decision to place him or her in an EIV unit, an appeal lies to the courts responsible for the execution of sentence against any restriction of a ‘civil’ right (affecting, for instance, a prisoner’s family visits or correspondence). However, given that in the instant case the applicant’s placement in the unit did not entail any restrictions of that kind, even the possible lack of such a remedy could not be said to amount to denial of access to a court.”

“… the placement of the applicants in high-security cells led in particular, in addition to solitary confinement in itself …, the restriction of visits to one hour a week – with prisoner and visitor separated by a glass panel - , the restriction of exercise to one hour a day and the impossibility, for the first applicant, of continuing with his studies and sitting exams. … these are restrictions on ‘individual civil rights’. Such restrictions on the prisoner’s rights, as well as the repercussions that they may have, must therefore be analysed in terms of ‘civil rights’ (see Enea).”

“Whilst it is true that the impact on his private life was indirect, it was nevertheless beyond doubt … the Court considers that the restriction alleged by the applicant, in addition to its pecuniary implications, related to his personal rights, in view of the significance of the applicant’s interest in resettling in society. In that connection it is of the view that the applicant’s social rehabilitation was crucial to the protection of his right to lead ‘a private social life’ and develop his social identity.”

“In my view, the respondent Government were correct in pointing to the discretionary nature of decisions by the domestic authorities concerning requests for prison leave and in concluding that, where the authorities have discretion as to whether or not to grant a particular concession, that concession does not amount to a ‘right’ and, accordingly, Article 6 … does not apply to proceedings concerning its granting or otherwise.”

“In the series of prison cases [Ganci, Gulmez, Enea and Stegarescu] the European Court recognized as personal, and therefore ‘civil’, those residual rights prisoners claimed to enjoy by virtue of the ‘normal’ prison regime subject to legitimate executive action to remove them … When a person receives a custodial sentence he forfeits the freedom (and the right) to associate with whomever he wishes but he does not, in my view, thereby forfeit his right of association with all his fellow human beings. He does not, in other words, receive a sentence of solitary or cellular confinement. The YOI Rules and the system of privileges described by PSO4000 implicitly recognise the basic right of the prisoner to associate with his fellows during certain activities which the YOI Rules require the Secretary of State to provide. I accept the Secretary of State’s submission that the extent of the ‘basic’ association to which the inmate will be entitled, subject to the performance of his statutory duty, in the discretion of the governor of the institution; but, in my view, the existence of that discretion does not remove from association its quality as a personal right. It is a right which is subject to the lawful exercise of discretion by the governor. There can, it seems to me, be no doubt that a prisoner has the right of access to a court if he asserts that the governor has arbitrarily removed him from any association with those of his fellow inmates with whom he would normally enjoy joint activities. That right of access to the courts exists because association is one of those residual rights which the prisoner retains subject to the lawful exercise of disciplinary or other powers. This, I think, is the distinction between the case of a prisoner and the case of the discretionary recipient of a welfare or other benefit … I accept that within the autonomous meaning afforded to ‘civil rights’ by the European court a right of association, in the sense I have described it, is a civil right.”

“… a right guaranteed by Article 8 is not in itself a civil right within the meaning of Article 6(1). Although a right guaranteed by Article 8 is not in itself a civil right within the meaning of Article 6(1), the Human Rights Act has now transformed the position in this country. By virtue of the Human Rights Act Article 8 rights are now part of the civil rights of parents and children for the purposes of Article 6(1). This is because now, under section 6 of the Act, it is unlawful for a public authority to act inconsistently with Article 8. … the court remedies provided by sections 7 and 8 should ordinarily provide effective relief for an infringement of Article 8 rights.”

“Held, that since sections 7 and 8 of the Human Rights Act … provided a private law right to claim damages for breach of a Convention right included in the Schedule to the Act, a Convention right was in itself a ‘civil right’ within the meaning of Article 6 …, in the determination of which a person was entitled to a fair hearing; that the protection of Article 6 did not apply to Convention rights only where a claim under the 1998 Act was brought, but applied wherever there was in reality a dispute which would determine whether a Convention right had in fact been breached; that since section 11 of the Prevention of Terrorism Act 2005 prohibited any court from entertaining a challenge to a decision under the 2005 Act in relation to a control order, and since control orders restricted the Convention rights of those who were subject to them, a decision in proceedings pursuant to section 3(10) was determinative of whether there had been a breach of a controlee’s Convention rights and so was determinative of the controlee’s civil rights for the purposes of Article 6; that, therefore, Article 6 applied to a section 3(10) hearing and required that it be fair.”

“It is obvious that seclusion, improperly used, may violate a patient’s Article 8 right in a serious and damaging way and may found a claim for relief … I have, for my part, some difficulty in appreciating how the seclusion can be said to show any lack of respect for a patient’s private and family life, home or correspondence, if it is used as the only means of protecting others from violence or intimidation and for the shortest period necessary to that end.”

“It is clear that the criterion for the European courts in deciding whether Article 6 is engaged is the nature of the proceedings and not the articles of the Convention which are alleged to be violated … It was suggested that the effect of the Human Rights Act 1998 (giving a domestic civil remedy for violations of Convention rights) was to convert all claims of infringement of Convention rights into civil rights within the meaning of Article 6. If the proceedings had been an action in tort for a breach or threatened breach of Article 3, they would certainly be asserting a civil right and Article 6 would be engaged: compare Tomasi v France (1992) 15 EHHR 1, paras 120-122. Similarly for violations of Article 8. But these proceedings are not of that nature. They are to challenge the validity of deportation orders. As I have said, it is the nature of the proceedings which decides whether Article 6 is engaged or not.”

“… it does not follow from the fact that the right to liberty can be generally described as a civil right that the appellants’ civil rights within the meaning of Article 6(1) were engaged in this case. The question whether this Convention right is engaged, if at all, has to be determined in the light of the proceedings that are in issue and the nature of the dispute.”

“In my judgment, on the facts of the present case, the proceedings complied with the requirements of fairness under Article 6.1. The High Court enjoyed ‘full’ jurisdiction to review the issues which arose for consideration.”

“The great principle which Bryan decided … was that ‘in assessing the sufficiency of the review … it is necessary to have regard to matters such as the subject-matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.”

“varies according to the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject-matter of the decision and the quality of the initial decision-making process. If there is a ‘classic exercise of administrative discretion’, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, the judicial review may be adequate to supply the necessary to access to a court, even if there is no jurisdiction to examine the factual merits of the case.”: R (Wright v Secretary of State for Health [2009] 2 WLR 267, at paragraph 23, per Baroness Hale. 2) An important consideration is whether the issues to be determined require “a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to consider pooling aims” as opposed to “deciding a simple question of fact”

“The discipline system not only affects prisoners but prison staff as well. The successful management of prison officers depends in part [on] staff having an understanding of and confidence in the discipline system. Prison officers must be able to trust the system and believe that it strives to protect them from threats and physical harm. Therefore Governors who hear adjudications and make awards of punishment can reassure prison staff that prisoners will be appropriately punished for actions directed at prison staff. If the discipline system becomes less effective because governors lose the power to adjudicate, prison staff may lose confidence in the ability [of] prison management to protect them and regime development and improvements will be more difficult to implement as staff morale and cooperation reduces.”

“… I have no doubt that an informal and fair-minded observer would regard the prison governor or their deputies as being quite capable of interpreting and applying the prison rules fairly and independently, even though they are obviously committed to upholding them.”

“It seems to me likely that the introduction of special advocates would be of practical benefit in only the rarest of circumstances. Intelligence of this kind is only rarely likely to be able to be rendered into statement form so as to be tested by cross-examination or submissions. In any event, how often are those possessing the relevant knowledge likely to be prepared to make statements even when given assurances as to the special procedures to be adopted? The law must recognise the realities of the situation with which the prison authorities are dealing. Giving information in this kind of context is bound to carry considerable risks on frequent occasions. Any other view is quite unrealistic.”

“The decision on whether particular types of behaviour warrant segregation is linked not just to individual instance but to a holistic appreciation of the impact of the behaviour on the safety and control of the prison. Without the operational knowledge of the wider dynamics of the prison it would be extremely difficult for an independent person or body to achieve the balance between meeting operational need and allowing the prisoner to remain on normal location.”

“No doubt in many cases the governor will be able, as here, to give reasons at the time of the decision or shortly after. But the same considerations of public policy as persuaded me … to hold that reasons are not in law required as a matter of course before a decision to segregate may apply with equal force after the decision. Again, the guiding factors must be the subject-matter and the circumstances … I would not be prepared to hold that in all cases a prisoner has a legal right to be given the reasons for his segregation.”

“The law must recognise the realities of the situation with which the prison authorities are dealing. Giving information in this kind of context is bound to carry considerable risks on frequent occasions. Any other view is quite unrealistic. The prison authorities are bound to receive relevant information, but unable to reveal the source. Are they to ignore such intelligence in making judgments? That is inconceivable. They cannot solve the problem by dropping prosecutions, as prosecuting authorities do from time to time. All the same prisoners and all the same risks will still be there tomorrow.”

“Access to activities such as … use of the telephone … should be comparable to those for a prisoner held in normal location.”

“I accept the propositions that segregated prisoners are likely, on the whole, to have more pressing legal issues than others … I also accept that there is an obligation at common law and arising from ministerial policy as set out in PSO1700 to ensure that segregated prisoners should have reasonable, sufficient access to legal advice. I am not convinced, as a matter of law, that there is an obligation to provide exactly the same access to segregated prisoners as to others. The law must always take account of realities. If the practicalities of the segregation unit demand a variation of the practice, then within reason that can be acceptable …. I have not been persuaded by the evidence that the system of access to legal advice [which involved a rota system that did not always work perfectly] has been so poor as to be unlawful, either according to common law or by reference to PSO1700. The policy in PSO1700 does not require that segregated prisoners should have exactly the same access to telephones. The access provided at HMP Frankland has in no way prevented effective legal advice and representation.”

“a convicted prisoner, in spite of his imprisonment, retains all his civil rights which are not taken away expressly or by necessary implication.”