Francis v Home Office (& Ors) [2006] EWHC 3021 (QB)

[2006] EWHC 3021 (QB)Case No HQ06X00408
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 st July 2006
Before
MR JUSTICE DAVIS
Between
JOHN FRANCISClaimantTHE HOME OFFICEDefendant
The Claimant appeared in person for in personMrs Wendy Outhwaite (instructed by The Treasury Solicitors) for DefendantsHearing Hearing dates: 10 th 11 th 12 th 13 th July 2006
Judgment

Introduction

[1]The claimant Mr Francis, was in November 1999 sentenced after a trial at the Central Criminal Court to twelve years imprisonment for serious sexual offences relating to a female child. An appeal against conviction was allowed on the 16th December 2002. At the re-trial Mr Francis was again convicted with a like sentence following and an appeal against conviction was dismissed on the 9th December 2004.[2]Mr Francis did not and does not accept guilt and has since made an application to the European Court of Human Rights.[3]Mr Francis has been incarcerated in a number of different prisons in respect of this sentence. One such prison was HMP Belmarsh where he was for some months in the second half of 2005, between June and September, when he was then transferred to HMP Long Lartin. His complaint in these proceedings, in a nutshell, is that whilst he was at Belmarsh a number of confidential and/or legally privileged letters were wrongfully opened, in breach of Rule 39 of the Prison Rules 1999 and of the relevant Standing Orders and prison instructions, so as to be an infringement of his rights under Article 8 of the European Convention on Human Rights.[4]In addition he complains that certain letters written by him were stopped by the authorities at HMP Belmarsh from being sent out to the addressees: and he alleges that that infringed his rights under Articles 8 and 10 of the European Convention on Human Rights. Further, he alleges that the conduct of the relevant prison officers at HMP Belmarsh was such as to constitute misfeasance in public office. He seeks financial compensation, by way of just satisfaction, and damages (including exemplary damages) for the tort of misfeasance in public office.[5]The position of the Home Office and the named prison officers who have been joined as parties to these proceedings is to deny any wrongdoing to the extent claimed by Mr Francis. Further to the extent that some letters were wrongly opened, it is said that that was done in error and in no way was in bad faith such as to constitute misfeasance in public office. It is further said that appropriate apologies were offered and steps taken to seek to prevent a recurrence. Overall, it is said that in the circumstances Mr Francis cannot be styled as a “victim” entitled to seek redress under Articles 8 or 10 and in any event that the court in its discretion should not award Mr Francis any relief whether in the form of declaratory relief or monetary compensation.[6]Mr Francis issued two sets of proceedings in the Woolwich County Court on the 14th of October 2005. The damages which he claimed were £1,700.60 and £4,959.60. At that stage he was acting in person. Subsequently he for a while instructed solicitors but they ceased to act and legal aid was withdrawn some weeks before the trial was fixed to start on the 10th July 2006.[7]Mr Francis did in fact, in advance of the trial, send a letter seeking an adjournment: which I refused. At the trial he complained strongly of difficulties that he had experienced in gaining access to his papers and in consequence also, because of late delivery, in mastering the trial bundles which had recently been received by him personally: although he did not in fact renew any request for an adjournment of the trial.[8]That Mr Francis did experience difficulties I accept. But I should record that even if he did not have the precise page numbers of the trial bundles at his finger tips, Mr Francis in effect knew the documents and the case which he wanted to advance backwards. Mr Francis in fact takes a keen interest in matters of law and litigation. He is a highly intelligent man. He told me that he had a doctorate in international law and politics and had appeared in courts in the Caribbean and Africa. He advanced his case eloquently, fluently and coherently. I also desire to add that throughout the trial he conducted himself before me with complete courtesy. In fact, although of course one has to allow for the constraints and pressures of litigation, I rather gained the impression on occasion that Mr Francis was almost relishing the chance to have his day, or rather days, in court.[9]In considering Mr Francis’s submissions I have thought it right to have regard to further written submissions (together with enclosures) which were sent to me by Mr Francis after the hearing had concluded. I thought it fair to do so, not least because Mr Francis was very badly let down on the final day of the trial by the prison authorities and by the company responsible for transport in delivering him to court: which may have meant that he would have had rather less time that day than he would have liked to consider the closing written submissions put in on behalf of the defendants and also to deploy all that he would have had to say. Thus it was that I thought I should have regard to his subsequent written submissions.[10]This case has inevitably thrown up the diametrically opposed perceptions of prisoners on the one hand and the prison service on the other hand to cases of this kind. Mr Francis complained generally about conditions in prison. With regard to his case, he said (and I quote his words):
“I shall be the flower that drops before the fruit can bear”
. He went on to say that: “Wagons are circled when you make complaints in prison”: meaning in effect that prison officers would always support each other and also would make life difficult for any prisoner who dared to complain.[11]As against that, it was possible to deduce from aspects of the defence case here that there is a perception that there is always a group of prisoners only too ready to make complaints and to tie up prison staff in dealing with such complaints, with an eye to a chance in the future of extracting some monetary compensation for alleged grievances: when such prisoners have ample time on their hands to formulate those matters. Whether such attitudes can ever be broken down I do not know; but it seems to me that cases of the present kind require a close examination of the facts, each such case of course depending on its own facts.[12]I gather that there had been something of a flood of complaints resulting in legal claims from prisoners arising from the decision of the Court of Appeal in the case of Watkins v Home Office [2005] QB 83, which was a case relating to the wrongful opening of prisoners mail and which decision was widely publicised (including amongst prisoners). Whether this flood of complaints was a consequence of prisoners becoming aware of their rights and potential remedies or whether this flood of complaints betokened some element of opportunism cannot be known. Mr Francis himself referred to and relied on that decision of the Court of Appeal in his claim form as issued. But the Court of Appeal decision has since been reversed by the House of Lords: see Watkins v The Home Office [2006] UK HL17; [2006] 2 All ER 353. I am told, all the same, that a number of other claims are in effect currently stayed pending the outcome of this present action and also of another action, Woodin v The Home Office, which I heard immediately after the hearing of Mr Francis’s case. These cases have, as I gather, in effect been selected as test cases and for that reason were directed to be transferred from the County Court to the High Court. I make no quarrel with that and it may be that the approach taken in these two cases by this court will offer some guidance as an approach to other such cases. Ultimately, however, I repeat, each case must be taken on its own facts. I add of course that Watkins was a case of misfeasance in public office. Because of the dates involved, it could not and did not relate to claims under the European Convention on Human Rights: but a number of the speeches indicate the potential availability in appropriate cases, of Article 8 (if not Article 6 also) in a context such as the present.

Legal Framework

[13]I turn then to the legal and regulatory framework. The current relevant Rules relating to prisoner’s correspondence with legal advisors and any court, is contained in Rule 39 of the Prison Rules (SI1999/728). That replaces, and in substance replicates, previous versions of such Rule which were made pursuant to Section 47(1) of the Prisons Act 1952. Rule 39 of the Prison Rules 1999 provides as follows: (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.”[14]That Rule is supplemented by internal prison service instructions. Thus a prison service instruction, PSI 2/2005, implemented on 21st of February 2005, updates the actual policy. Amongst other things, paragraphs one and two refer to the general policy on legal and confidential access correspondence. The instruction notes that Rule 39 provides for correspondence between prisoners and their legal advisors and that such correspondence must not be opened, read or stopped except in special circumstances. Further, under paragraph six, there were extended to correspondence between prisoners, and the bodies listed, confidential handling arrangements – such bodies are extensive and they include the courts, the ombudsman, Criminal Cases Review Commission and also, amongst others, the prisons and probation Ombudsman and Members of Parliament. In addition there are provisions as to the handling and processing of correspondence. So far as Rule 39 is concerned it is stated that the envelopes of legal correspondence should be continued to be marked Prison Rule 39 and (as said in paragraph 8) that the same handling arrangements apply to confidential access correspondence (except that the envelopes of such claims of privilege should be marked confidential access, as opposed to Rule 39) and should be clearly addressed to one of the bodies listed above. Paragraph 9 provides for the same handling arrangements for such correspondence where the proper marking is not made, but with a disclaimer in the event of inadvertent opening. So far as correspondence between prisoners and MPs is concerned, in paragraph 11 it is provided that it is fundamental that prisoners continue to have access to Members of Parliament while serving their sentence; correspondence should be allowed freely but letters between prisoners and MPs should be treated as privileged only where the MP is acting in a constituency capacity.[15]Function 4 of the National Security Framework also sets out the circumstances in which correspondence may be read. It is provided, however, that routine reading of correspondence may be initiated and undertaken in certain cases, including what are cases called PSO 4400 cases. Because of the nature of Mr Francis’s conviction, he falls in such a category; and it is common ground that the Prison Service was accordingly entitled to open and read all of his correspondence unless that correspondence was protected by Rule 39 or by the relevant standing instructions and orders relating to confidential access correspondence.[16]In addition, there is a Standing Order known as Standing Order 5 which in section 5 relates to prison correspondence. I take this in the consolidated version which Mr Francis has provided to me, he being very aggrieved that an incorrect or incomplete version was placed in the trial bundles (indeed he suggests that was deliberate deception on behalf of the defendants, although I do not think it was). I have had regard to this consolidated version as provided by Mr Francis, which is indeed in somewhat different terms to the extracted version provided in the bundle initially lodged for trial.[17]Mr Francis emphasises the general requirement that the examination and reading of correspondence is to be undertaken only to the extent strictly necessary. Reference should also be made to paragraph 23 which provides as follows: “Correspondence with another convicted inmate requires the approval of both governors, except where the inmates are close relatives as defined… or where they were co-defendants at their trial and that correspondence delays their convictions or sentence. Subject to the provisions of paragraph 21 to 29 approval should be given unless there is reason to believe that such correspondence will seriously impede rehabilitation of either or where it could be desirable in the interests of security or good order and discipline that the inmate should be prevented from communicating with each other. Any letter from one inmate to another should, if the governor of the writer’s establishment has no objection, be sent to the governor of the recipient’s establishment with a memorandum inviting him or her to consider whether it should be issued”.[18]There are other provisions in the Standing Order to which I was referred which it is not necessary for me here to recite. I have had regard to them.[19]Mr Francis made no complaint in his pleaded case, nor did he complain at trial, that the statutory rules or internal instructions constitute a scheme which in general terms of themselves breached the European Convention on Human Rights. Indeed, it is plain - and is supported by a number of authorities - that they do not. But he did very briefly submit in writing that paragraph 23 was “cumbersome, time consuming, and ultra vires Article 8.1 and 10.1.” I think it is sufficient for me to say shortly that such paragraph in my view is clearly justified and proportionate by reference to Articles 8 and 10. Further, relevant prison materials relating to correspondence can be found in PSO 1000 Security Manual chapter 36, in performance standards on prison communications issued in July 2002, and in Instructions to Governors IG 113 95 first issued in 1995 and subsequently supplemented and modified. Again Mr Francis was concerned that the copy of this last document, as placed in the trial bundle, did not correspond to the version which he had and which he has since produced: although in my view that makes no ultimate difference to the issues in this case.[20]Finally, a procedure has been agreed between the Prison Service and the Law Society and Bar Council that correspondence falling within Rule 39 should be clearly so marked and should be dealt with in a particular way recorded in IG 113/95 in these terms:
“The Bar Council and the Law Society have agreed that incoming correspondence from a legal advisor to a prisoner will be in the form of a double envelope enclosing a letter sealed in an unstamped envelope, the outside of which will be annotated with the prisoner’s name and prison number (if known); the name, address and telephone number of the law firm and a reference number; the words “Prison Rule 37A” or YOI Rule 14”; and the signature of the legal advisor or his or her clerk. Alternatively, this information may be given in a covering letter to the Governor and his establishment rather than written on the envelope addressed to the prisoner”
. And it goes on to say that there will be occasions where due to oversight or lack of awareness, incoming correspondence may not be clearly marked in this way, but nevertheless the establishment should know that where incoming correspondence is identified as appearing to come from a legal advisor, (for example by a solicitor’s stamp on the envelope or some other such marking) it should be treated in exactly the same way as if it were properly marked.[21]It would appear from the cases before me that those guidelines as agreed by the Law Society and Bar Council are not being strictly followed. In some instances, for example, reference to Rule 39 seems only to have been marked on the enclosed letter itself, designed to be visible through the window of the envelope containing the letter. That, as this case illustrates and as I will come on to say, can lead to mistakes or misapprehensions. It seems to me important to emphasise the need for all letters falling within the ambit of Rule 39, and certainly those from lawyers, clearly to be so marked on the outside, and for the procedures agreed within the Law Society and Bar Council to be strictly followed. If that is done, that should lead to a reduction in any mistakes that might occur. I might add also that if that is properly done a series of asserted innocent mistakes on the part of the Prison Service in opening such letters which have strictly complied with the agreed procedures perhaps will make a court more inclined to be wary of the assertions of innocent mistake.

The Facts

[22]I turn to the facts. Mr Francis was placed on temporary admission to Belmarsh in June 2005. The evidence shows that in his time there Mr Francis was a vigorous complainer, particularly with regard to correspondence: his complaints being, in terms of number, far in excess of what is usual for a prisoner: although it may also be that Mr Francis had far more correspondence than most other prisoners. Mr Francis told me that his method of dealing with perceived wrongs was by way of using the complaint procedures available. This I think also reflected his passion for legalities. He emphasised that his methods were not the methods of aggression and violence as sometimes used by other prisoners when they considered themselves to have been wronged.[23]Incoming mail to Belmarsh was handled by staff working in the censors’ office, some staff specialising in category A prisoners’ mail. Such staff generally are not prison officers as such; but they are answerable to a senior Prison Officer who is a security officer. Incoming post is first delivered in the receiving distribution store where it is X-rayed and subject to search by sniffer dogs. It is then taken to the post room for sorting the mail for the four different house blocks at Belmarsh. It is then passed to the censors’ department which currently comprises nine censors.[24]The process at Belmarsh is that every outgoing or ingoing letter should be logged on the prisoner’s correspondence sheet. It is stated in the witness statement of Joanne Hill, one of the censors at Belmarsh who gave evidence before me, that:
“Every letter …will be logged”
. However, cross examination of Miss Hill by Mr Francis has shown that not to be accurate. Certain letters (for example, those marked CBF 2 and CBF3 at the trial) addressed to Mr Francis, were, it would appear, not logged. That I find is not in any way the product of bad faith: rather it was indicative of human error or oversight. So far as recorded delivery mail or registered post is concerned, that would be recorded in a separate recorded delivery book[25]Because Mr Francis was a PSO4400 prisoner, his ordinary correspondence was legitimately opened and read. In addition checks would be made as to any enclosures, including cash or cheques or any other such matter. Any letter seeming to be untoward would be referred to the assessment of a security intelligence officer.[26]On opening a letter a censor at Belmarsh would ordinarily stamp it with that particular censor’s stamp which would identify which censor was concerned. The evidence before me indicated that not all the censors necessarily would affix such a stamp in the case of mail not opened: for example Rule 39 letters. Some did, some did not. The evidence also indicated that all censors routinely used paper knives to open letters.[27]So far as Rule 39 correspondence was concerned, that of course was not to be opened or read and the letter was required to be passed to the prisoner in question unopened. The same applied to letters from courts. In that latter regard the censors would rely on the fixing of the relevant court stamp to the outside of the letter (it seems that courts generally do not expressly stamp their correspondence as Rule 39 correspondence). A similar procedure was followed with regard to confidential access letters: for example from the Criminal Complaints Review Commission, from the Ombudsman and from any constituency MP of the prisoner concerned: see the provisions which I have already mentioned.[28]In the event that an error was made, in that a letter under Rule 39 or a confidential access letter was wrongly opened, the required practice was that that should be recorded in a book known as the “opened in errors log”. Again the evidence before me indicated that there were sometimes failures to make such entry. Procedures also, I might add, existed at Belmarsh to explain any such occurrence of wrongful opening to affected prisoners.[29]Mr Francis’s complaints fall essentially into two parts. First he complains that between 25th June 2005 and 7th September 2005, thirteen incoming letters addressed to him were wrongfully opened; and secondly he complains that two outgoing recorded deliveries from him, addressed to Woolwich County Court, were wrongfully prevented from being sent out. In addition - although it is not altogether clear from his Claim Form, and in any case he made clear in argument that the Woolwich letters were his principal complaint - Mr Francis also says that other outgoing letters, including letters to another inmate called Mr Goldsmith (who was also serving a sentence for a sexual offence), and to Mr Goldsmith’s wife, were prevented from being sent out.[30]Mr Francis makes the general point that if so many letters over a relatively short time could be wrongly opened or wrongly stopped, (as he says they were), then that, taking it cumulatively, he submits, is hardly indicative of innocent mistake. It is therefore necessary to deal with each letter by turn.

Incoming Letters

[31]So far as incoming letters are concerned, the first of which complaint is made is a letter received on the 25th June 2005, this being exhibit number JF8. This was marked as being from the House of Commons. It had no express marking on the envelope of it being a confidential access document. Of course, this letter had not been a letter from a solicitor or from a court and was not, as such, a Rule 39 letter: but it was indeed potentially a confidential access letter under paragraph 11 of PSI 2/2005, if Mr Moss MP (who it turned out to be sending the letter) was Mr Francis’s MP and was acting in a constituency capacity. Mr Francis said in evidence that he was; and I am prepared to accept that. Accordingly such letter should not have been opened. But it was opened, Miss Hill being the censor concerned. Mr Francis made a complaint at the time.[32]I am satisfied, accepting Miss Hill’s evidence on this, that this was an innocent error. PSI 2/2005 had been in force only for a few months. It was not clear from the envelope itself that the letter from the House of Commons was from a constituency MP and, as I have said, it was not marked on the envelope or elsewhere with an indication of confidential access. Being unsure she opened the letter. Having glanced at it (and I accept her evidence that she did not read it through) she consulted a superior and realised that she had perhaps made a mistake. She told me that she went in person to apologise to Mr Francis. Mr Francis on the other hand told me that he had never seen Miss Hill before the trial. I do not think Miss Hill could have been mistaken on this and I thought her an essentially truthful witness. I accept that she apologised.[33]The evidence also shows that there was a written apology to Mr Francis from the head of operations, Mr Clark, in response to Mr Francis’s written complaint about what had happened. In addition, a senior security officer stated on the 5th August 2005, in writing, that fresh instructions had been given to staff in this regard: although that officer also suggested that it would assist if Mr Francis’s own correspondence was in properly marked envelopes.[34]Mr Francis did not pursue that complaint any further. He told me that at that time he was satisfied with the response that he had received at the time.[35]The second letter of which complaint is now made by Mr Francis was exhibit JF3. It was a letter from the Criminal Cases Review Commission and was received, although apparently not logged, on the 6th July 2005. Such a letter of course does not directly fall within Rule 39 as such but (as with the letter from Mr Moss MP) fell within the confidential access arrangements set out in PSI2005/02. The letter was clearly stamped with the CCRC stamp on the front of the envelope. There is a dispute as to whether that letter was opened before it was received by Mr Francis. On the whole I consider that it was not proved that it was so opened. None of the censors recollect or accept opening it, it was not recorded in the opened in error log, and there is no censors’ stamp on the envelope to indicate that it had been opened. Moreover, and noticeably, Mr Francis made no formal complaint at the time. Given his normal readiness to do so that, I think, is rather surprising if the letter had indeed been opened. None of these points individually is decisive; but taken together they indicate to me that the letter had not been wrongly opened by anyone at Belmarsh. To the extent that Mr Francis’s evidence was to the contrary, I do not accept it.[36]The third letter is exhibit JF6. This was post marked 26th July 2005 and received and logged at the prison on the 29th July 2005. The envelope clearly bears the Peterborough County Court stamp. As such it was a Rule 39 letter, although the envelope had no Rule 39 stamp on it. The letter bears a processing stamp of censor 9, who was Mrs Stelfox. That might indicate that it had been opened. But Mrs Stelfox, a very reliable and experienced witness, told me that she, unlike some of her colleagues, sometimes fixed her censor’s stamp to letters she had handled, even when she had not opened them. She also told me that she, in common with other censors, always used a paper knife: but that particular letter seems to have been rather crudely opened. In her witness statement, Mrs Stelfox said that she had not opened this letter. It was not put to her in cross examination that she was mistaken or not telling the truth on this and I accept her evidence. It is also to be noted that Mr Francis made no formal complaint at the time about this letter. I find that it is not proved that this letter was wrongly opened by anyone at Belmarsh.[37]The fourth letter exhibit JF15 was another letter from the Peterborough County Court, posted on the 28th July 2005, (although not logged when received) and bearing the Peterborough County Court stamp on the envelope. Again, therefore, Rule 39 applied to this letter even though it was not stamped Rule 39 as such. There is no censor’s stamp on the envelope (which envelope is also ripped) to indicate that it had been opened, and Mr Francis made no complaint at the time that it had been wrongly opened. In such circumstances, it is not proved in this case that it had been wrongly opened by any of the defendants.[38]The fourth letter, JF1, is a letter from the Treasury Solicitors received on the 2nd July 2005. The Treasury Solicitors, of course, were not Mr Francis’s legal advisors. As such, letters from them do not fall within Rule 39 or confidential access procedures. In fact, as I find, the evidence also did not establish that that letter had been opened by the defendants; and it may be noted that the evidence shows that Mr Francis made no formal complaint at the time. Given that this letter is from the Treasury Solicitors there can for that reason alone be no ground of complaint in this regard.[39]The fifth letter, JF7 was a letter from Galbraith Branley, a firm of solicitors acting for Mr Francis. Receipt of that letter was logged on 9th August 2005. The envelope had fixed to it on the outside a stamp (albeit with no signature) of the solicitors. But it was not in a double envelope nor was it marked as a Rule 39 letter on the envelope itself, contrary to the guidance given by the Law Society. It seems, however, that Rule 39 had been marked on the enclosed letter which was presumably designed to be visible through the window of the envelope immediately above the name of the addressee, Mr Francis - not a desirable procedure to be adopted, in my view, given that the positioning of the letter in such an envelope is not necessarily constant. The letter is stamped with the stamp censor 5. That was Toni Mayhew, one of the censors. She said in evidence to me that she had not opened it. It was in fact marked by her on the envelope “not opened”. I accept that evidence: which is also consistent with the fact that Mr Francis submitted no complaint at the time. It is in such circumstances not proved that this letter was wrongly opened.[40]The sixth letter, JF5, received on the 31st August 2005 was from the Treasury Solicitors. For the reasons set out above, it was not within the Rule 39 or confidential access procedures at all. That therefore disposes of the complaint in this regard. But in any event Ms Mayhew had written “not opened” on it and got another censor to countersign that. She did this because she had by now learned that Mr Francis had been making complaints about the opening of correspondence and wanted to protect her personal position. I accept her evidence on this. I add that Mr Francis made no complaint at the time.[41]Letter JF10 was a letter from the firm of solicitors called Jordans whom Mr Francis had also, as he told me, retained. That seems to be logged as received on the 18th October 2005. As such, that letter fell within Rule 39. Further, there was clearly stamped on the back of the envelope the name and address of the solicitors and also on the front of the envelope that it was “Rule 39 solicitor’s correspondence”: although the approved double envelope procedure had not been used. The letter had, it seems, first been sent to HMP Whitemoor and then been forwarded on to Belmarsh, who then in turn forwarded it on to HMP Long Lartin to which prison Mr Francis had by then been transferred. It is not altogether clear whether this particular letter was the subject of a written complaint made by Mr Francis at the time. Mr Francis did in fact make a complaint on the 20th October 2005 in these terms:
“On Wednesday 19 October 2005 I received a legal letter clearly marked Rule 39 from HMP Belmarsh in a brown envelope. That legal letter was opened by censors at HMP Belmarsh as can be seen recorded in the Rule 39 letter book. I wish you therefore, without fail, to approach Belmarsh censors and enquire why a clearly marked Rule 39 letter was opened and then placed in a blank brown envelope and forwarded on to HMP Long Lartin. Your answer would be most appreciated, thank you”
. The answer given was: “I contacted censors’ department at HMP Belmarsh who have apologised and stated that your letter was opened in error”.[42]This complaint coincides with the timing of the receipt of the letter. But the envelope JF10 is in fact a white (not brown) envelope. Mr Francis says that the letter had been opened and was in a white envelope which had then been placed in a brown envelope. That is capable of fitting with the two stamp marks that are on the envelope, the one being in respect of the sending solicitor, and the next being affixed when sent by Whitemoor to Belmarsh. On the whole I am prepared to accept that this was the letter JF10 in respect of which Mr Francis was making complaint at the time. As to this, Mr Francis placed reliance on paragraph 31 of the original version of 19 113/95 (which he produced before me in this regard) as showing that it had been unnecessary and unjustified to have opened this particular letter, marked as it was, Rule 39.[43]On the whole, therefore, I am prepared to accept that this letter had been wrongly opened; and it was this letter which was the subject of the apology recorded as given by Belmarsh at the time. I say this, even though the letter seems to have been quite roughly ripped open. Accordingly I do find on the balance of probabilities that this letter was opened contrary to Rule 39: although I see no reason for thinking that the statement that it was opened in error is anything other than accurate. It may have been of course - one does not know - that by this time those concerned at Belmarsh were not too concerned to make detailed enquiries into the position given that Mr Francis had gone to another prison.[44]The next letter, Exhibit JF2, was a letter from the solicitors, Galbraith Branley, logged as received on the 5th August 2005. It has some of the same deficiencies in marking, contrary to the procedure agreed with the Law Society, as the other letters referred to, except (and importantly) that on this occasion, “Prison Rule 39.1 applies” had been written on the front of the envelope. There was marked upon the envelope itself the words “not opened”. Ms Mayhew was the relevant censor, and she got another censor to countersign her signature. That accords with her evidence to me that she had not opened it and I accept that evidence. Mr Francis made no complaint at the time, it might be noted. It is in such circumstances not proved that this particular letter had been wrongly opened by anyone at Belmarsh.[45]Next there is a letter JF13, a letter the envelope of which is stamped “London Court Services” and logged as received at Belmarsh on the 17th of September 2005. As a letter from the court it fell within Rule 39, albeit Rule 39 was not stamped on the envelope. Ms Mayhew marked it as not opened on the envelope at the time, which again accords with her evidence to me (and which again I accept) that she had not opened it. Here also Mr Francis made no complaint at the time. I find it not proved that this particular letter had been wrongly opened at Belmarsh.[46]JF4 is a letter post marked 17th July 2005. It is a letter from the Treasury Solicitors and so cannot come within the Rule 39 or confidential access procedures at all. A complaint was made at the time by Mr Francis with regard to this but it was rejected for this reason. It was not however disputed that this letter had been opened by Ms Mayhew, she mistakenly thinking that it might be a Rule 39 letter coming from solicitors: and in consequence she in fact apologised to Mr Francis for this. (This incident, it would appear, was one of the reasons why she as a protective measure subsequently sought to mark the subsequent letters “not opened”.) However, no breach of the rules in fact had been involved: albeit at the time Ms Mayhew herself and I suspect also Mr Francis may not have appreciated that.[47]Letter JF12 was again from the House of Commons. It was logged as received on the 1st July 2005. To the extent that it was from Mr Francis’s constituency MP, it again fell within the confidential access procedure laid down in PSI 2/2005. The letter itself was again not marked Rule 39 or confidential access. Ms Mayhew opened that letter. It is accepted she did so not knowing that it was a letter from Mr Francis’s constituency MP; and she also has apologised for that. No formal complaint was made by Mr Francis at the time: although he did tell me that he did make an oral complaint at the time. Mr Francis told me he had made no formal complaint because he felt there was no point in doing so..[48]Finally of the incoming letters there is JF16, a letter from Galbraith Branley logged as received on the 5th September 2005. It bears the solicitors’ stamp but was not in a double envelope, nor was the envelope itself marked with a Rule 39 stamp. Again, such marking would seem to have been on the letter itself which was inside the envelope (although that letter was not produced to me at trial): the presumed intention no doubt again being that that marking be visible through the envelope window. It was dealt with by Ms Mayhew and she wrote on the letter at the time, “not opened”, her initials being countersigned by a colleague. Here too I accept her evidence that she did this because she wanted it on the record that she had not opened it, as I find she had not. Nor did Mr Francis make any complaint at the time. It is not proved that this letter was wrongly opened at Belmarsh.[49]Overall, of the thirteen incoming letters of which Mr Francis makes complaint of wrongful opening, I am only prepared to find that two, each being from the House of Commons, were wrongly opened contrary to the confidential access procedure, and that one, the letter being exhibit JF10 was wrongly opened contrary to Rule 39. Moreover as to those two letters from the MP, they were not letters of course to which Rule 39 directly applied and they had not been marked in any way as confidential or otherwise as being a letter to which the confidential access procedure applied. Nor, on the face of the letter and the envelope, could it be assessed as to whether or not the letter was from a constituency MP of Mr Francis.[50]As to JF10 it seems to me that it is important to have regard to the fact that this was itself a letter which had been forwarded on to Belmarsh from another prison and then in turn actually forwarded on again to Mr Francis at the new prison at which he was now incarcerated.[51]In reaching these conclusions about these letters, I emphasise that I have considered the evidence as a whole. I assess the evidence of the individual witnesses connected with Belmarsh prison as essentially honest and reliable and to a considerable extent as being in accordance with the contemporaneous records: although I do accept that the contemporaneous records are not in all respects complete. As a matter of impression I am bound to say that I was very much less impressed by Mr Francis’s evidence to me, albeit given with a degree of both assurance and charm. His explanations dealing with the point that the markings on the letters connoted their being crudely opened other than by use of a paper knife as having (he asserted) been caused by photocopying, for example, seemed implausible. I should however add that in the absence of forensic evidence, I do not attach too much weight to such evidence on that point either way: and it may be recorded that Mr Francis had his own potentially valid points with regard to certain of the opening marks on the letters. But the following in particular did influence me in my overall assessment.(1) First, Mr Francis is a practised complainer. It is surely significant where he made no formal complaint at the time with regard to a number of the letters of which he now makes complaint.(2) Secondly, the evidence of Ms Mayhew was to my mind particularly significant. She had marked on a number of the letters at the time “not opened”, usually getting a counter signature from a colleague for good measure. I am quite sure that she did this just because she had been fussed about Mr Francis’s various complaints at the time, (just as, I think, she was fussed now to find herself criticised in court). Ms Mayhew impressed me as an anxious and truthful witness. Indeed Mr Francis, who knows the score, initially did not even seek to challenge the veracity or reliability of her evidence on this. In fact, he did not do so until I asked him if he meant not to do so: and then he very shortly put it to her that she was lying. I am however satisfied that Ms Mayhew’s contemporaneous notations were truthful and accurate, as was her evidence to me. That indicates that Mr Francis’s own assertions, to the effect that the letters handled by Ms Mayhew had been opened by her, were not reliable assertions.(3) Third, it was never put by Mr Francis to any of the witnesses that they had been asked to open Mr Francis’s Rule 39 mail, or confidential access mail, with a view to victimising him in any way. When I myself asked Miss Hill about this, she said there had never been any such requirement. Further, Mrs Stelfox said in her evidence to me that Mr Francis was treated in no way different from other prisoners. I accept that. Indeed I should record that Mr Francis, in his closing address to me, disclaimed any allegation of bad faith against the individual censors, reserving his criticism for Senior Officer Lovelock, whom I will come on to mention.(4) Fourth, to the extent that these findings indicate that it was Mr Francis himself who opened some of these letters, I regret to say that I do so conclude.(5) Fifth, I add that in his subsequent written submissions Mr Francis has suggested that some of the entries in the logs do not coincide with the copies previously supplied to him and these changes show, he submits, a “guilty mind”. But the entries to which he refers do not obviously relate to him at all; the point he seeks to make is by no means self evidently right; and, most importantly, the matter was not raised in cross examination and the witnesses have had no chance to comment on the point. I do not think that these points therefore can affect my conclusions. Outgoing Letters[52]I turn to the outgoing letters. According to his Particulars of Claim, Mr Francis’s complaint seems to be with regard to two letters which he wished to send by recorded delivery on the 28th August 2005 to Woolwich County Court. As such of course those letters would be subject to Rule 39. Because of the identify of the recipient, (Woolwich County Court), the stipulated procedures applied to them. In fact the letters had first been countersigned as having been checked as to whether they contained anything illicit. It is not alleged that they were wrongfully opened: but it is alleged that Mr Francis was wrongly prevented from sending them out at the time. Unwarranted interference causing delay in sending out legal mail, is, I can accept, something which is, in appropriate circumstances, potentially capable of infringing Article 8, if not Article 6 or Article 10 also.[53]In my view, however, considering the evidence, there is nothing in this at all. The evidence showed that Mr Francis was not allowed to send out these two letters just because he had pre-fixed to the stamped letters recorded delivery slips. It was not the practice of HMP Belmarsh to permit this: the prison procedures require that a cash disbursement application was first needed. This was a requirement in place at HMP Belmarsh before Mr Francis arrived at the prison, as the evidence of Mr Lovelock, Miss Hill and Mr Brampton showed. Miss Hill asked Mr Francis at the time, when she saw these letters, how Mr Francis had got hold of these slips. He told her that he had got them from prisons he had previously been in and had kept them. Miss Hill told me that she then made enquiries of three such prisons he had been to and they said this could not be right. Miss Hill accordingly completed a security intelligence report dated 30th August 2005 indicating as much; and Mr Lovelock in due course recommended that such letters be returned to Mr Francis. This was then done on the direction of a governor. I find as a fact, I should add, that neither letter had been opened or read. Mr Francis put in witness statements from two prisoners (who were not tendered for cross examination) at HMP Full Sutton, who said that recorded delivery slips are freely available at that particular prison. That it seems to me does not really advance matters with regard to HMP Belmarsh. Mr Francis also in his subsequent written submissions, and relying on a request he himself recently made to HMP Pentonville with regard to such slips, said that Miss Hill cannot have been telling the truth when she says she made enquiries of the three prisons, as the security report which she made at the time records her as making. I reject that. Miss Hill had no reason to lie and I am satisfied that her contemporary security report was accurate.[54]Mr Francis also submitted that such a procedure adopted at HMP Belmarsh was “unnecessary and disproportionate” and was in breach of his human rights. I reject that. The reasons for such a procedure were explained to me by Mr Brampton, an experienced principal security officer; and they are justified as conducive to maintaining good order and discipline in Belmarsh.[55]There was at all events, as a result of this, a meeting on 1st of September 2005 between Mr Francis and Mr Lovelock, a senior officer. Another officer, Officer Hill, was also present. Mr Francis raised his complaints as to the fact that the letters to Woolwich County Court had been prevented from being sent out. Mr Lovelock then explained to Mr Francis the prison practice as to why the letters could not be sent out, containing as they did prefixed recorded delivery slips, and why they were returned to Mr Francis: so that he could then put on the recorded delivery slips using the cash disbursement application procedure used at Belmarsh. Things got heated. Mr Lovelock formed the view that Mr Francis was being aggressive and confrontational and trying to intimidate him (Mr Francis, I might add, is of physically imposing appearance). In due course Mr Lovelock recommended that Mr Francis, by reason of his conduct at this meeting, be reduced to basic status; and that recommendation was accepted by a superior officer. Mr Francis was and is very aggrieved at this. He says that he was never aggressive or intimidating at this meeting and that Mr Lovelock was acting in a malicious way in causing him to be reduced in status. Mr Francis also pointed to reports on him from certain other prisons, which he produced to me in evidence: those reports record Mr Francis as being in effect a prisoner of good conduct. Mr Francis says it was only at HMP Belmarsh at which he has had all this trouble.[56]The evidence of Mr Lovelock as to the events of this meeting was evidence which, in essentials, I accept. There is, I think, no question of Mr Francis ever having shaped up to strike Mr Lovelock and I fully accept that Mr Francis had no intention of any such kind; but I do accept that Mr Francis appeared to be aggressive, argumentative and intimidating and I accept that Mr Lovelock was entitled in consequence to recommend a reduction in status on the grounds of Mr Francis’s poor conduct and that he be put on a reduced regime accordingly.[57]I did find it rather troubling that Mr Francis’s status was reduced from enhanced status directly down to basic regime status: not, as would have been ordinarily appropriate, to the intermediate standard regime status. One consequence of such reduction was that Mr Francis lost potential earnings of, he says, £20.00 a week, (although the prison suggest nearer £14.00 a week), which a prisoner on enhanced status is capable of earning: whereas on basic regime status he was only capable of earning something in the order of £2.00 a week. He further strongly complains that by reason of such reduction he suffered distress and had very limited association time, no access to television, insufficient time to take showers and so on.[58]Having considered all the evidence, I am prepared to accept that Mr Lovelock had made a mistake and there was no bad faith or recklessness involved on his part in causing Mr Francis to be reduced down to basic status directly from enhanced status. The position was, as Mr Lovelock told me and I am prepared to accept, that it was assumed that Mr Francis was not on enhanced status at that time: Mr Francis having acquired that status as I gather from a previous prison and having transferred it with him to Belmarsh. Mr Lovelock had assumed that Mr Francis was a standard regime basis prisoner. Thus it was that Mr Lovelock had assumed that the reduction would be from standard basis to basic status. This was not picked up at the time by the superior officer actually making the decision or anyone else: although it was corrected some days later and Mr Francis was then placed on the standard regime.[59]I should also add for completeness that Mr Francis, having been told of the procedure that Belmarsh required to be followed with regard to recorded delivery slips for these two particular Woolwich letters, did subsequently avail himself of that procedure and without any problem during September sent the two letters out to Woolwich County Court, this being done a little while after they had initially been prevented from being sent. The fact remains that, had that procedure been followed at the outset, those letters would have gone out immediately.[60]Mr Francis also complains of various other letters which he had tried to send out, in particular letters to Mr Simon Goldsmith, a prisoner at another prison, (who, as I have said, had also been convicted of sexual offences involving a child) and to Mrs Goldsmith. Those of course were not letters to which Rule 39 could apply and further were letters which by reason of each prisoner having PSO4400 status were properly opened and read, under Standing Order 5. Further, by paragraph 23, the consent of the governors of both prisoners concerned was appropriate.[61]In the present case it is sufficient for me to say, having heard the evidence, that HMP Belmarsh had good reason to conclude that such letters should not be permitted to be sent out. For example, a censor submitted an intelligence report expressing concern at the contents of such letters; and Mr Lovelock cogently explained to me how he had reason to believe that some of the passages were coded comments. That, I conclude, was a view he was entitled to hold. The same applied to letters to Mrs Goldsmith, Mr Francis accepting that the prison service had to be aware of the prospect that she might be used simply as a conduit to Mr Goldsmith. Further, Mr Francis did not have the permission of each governor so to correspond: which is a point that can also be made with regard to the incoming letters addressed to Mr Francis from another prisoner (who also had been convicted of a sexual offence involving a child, as I understand it).[62]On the occasions when Mr Francis complained about this, he was in very clear and fair terms told why the letters were not being sent out: see for example the response of the senior officer in charge of operations for security, Mr Sanders, dated 19th of August 2005.[63]I therefore reject those particular allegations. To the extent that Mr Francis also complained that such letters were put in store and then, without objection subsequently supplied to him after he had been removed to Long Lartin, I do not think that has any real bearing on the issue. Those involved at Belmarsh were entitled under prescribed procedures to do as they did. I accept the evidence of Mr Lovelock, Miss Hill and others that Mr Francis was not being singled out in this regard. I need not say more on this, however, because Mr Francis said that his real complaint was about his correspondence with solicitors and with the Woolwich County Court.

Misfeasance in Public Office

[64]I turn then to the allegation of misfeasance in public office. The elements of the claim can be taken in accordance with the formulation of Three Rivers District Council v the Governor of the Bank of England [2003] 2 AC 1. In essence the position is that for a claim of this kind an element of bad faith must be proved: and this can be so where a public officer exercises his powers specifically intending to injure a claimant or when he acts in the knowledge of, or with reckless indifference to, the illegality of his act and in the knowledge of, or with reckless indifference to, the probability of causing injury to the claimant or to the class of persons of whom the claimant is a member. On the evidence I find that this claim is not proved. I find that there was no element of bad faith on the part of Mr Lovelock on either of the formulations posed by the House of Lords. I likewise find, to the extent that such point was pursued at all by Mr Francis, that there was no element of bad faith under either of these two formulations (or indeed in any other respect) on the part of anyone else at Belmarsh. I accept the evidence of the defence witnesses on this. The claim for misfeasance thus fails on the facts at the first hurdle.[65]In any event, the decision of the House of Lords in Watkins and the Secretary of State for the Home Department [2006] 2 All ER 353, establishes that proof of material damage is an essential part of the tort: and that would include financial loss or psychiatric or physical injury but not distress or injured feelings. In the present case Mr Francis has not proved that he has suffered any such loss as a result of alleged misfeasant conduct. As to a suggestion that he had wasted money on stamps, that was not in fact established and in any case would be trifling. As to his complaints about loss of earnings and of associated distress as a result of his being reduced to the basic regime, that was not, as I see it, in causation terms due to the alleged misfeasance relating to the handling of his correspondence: rather, it was caused by his unacceptable behaviour at the meeting of the 1st September 2005 when he aired his complaints: and it was that behaviour which resulted in the decision to take disciplinary steps against him.

Article 8

[66]I turn then to the claim based on Article 8: which, in fairness to Mr Francis, I think was the principal way in which he advanced his claim: albeit he also made reference to Article 6 and Article 10. Articles 8 and 10 read as follows:[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.

ARTICLE 10

[1]Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.[2]The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Mrs Outhwaite for the Home Office, accepts that if there was an infringement under Article 8.1, or Article10.1 then in the context of a case such as the present, no defence under Article 8.2 or Article10.2 could arise since the acts in question would then not have been in accordance with or as prescribed by law.[67]In my view this claim must fail having regard to my above findings of fact. As I have held, it has only been established that the two letters from the MP, and the one letter JF10 from the solicitors, had been opened in breach of the prescribed procedures; and so far as those letters from Mr Moss MP from the House of Commons were concerned, I repeat that such letters were opened inadvertently, as not having been marked in any way as being confidential access and when it was not known that the letters were from Mr Francis’s constituency MP. Further, apologies were given at the time and the Head of Operations indicated, and as I accept happened, that steps were taken at the time to ensure that there be no recurrence of the issue. So far as JF10 is concerned, that was a rather special case in that it had been forwarded on from a previous prison. I note Mr Francis’s point as made by reference to the relevant governor instructions: but it seems to me there is no reason not to accept the evidence that this letter was inadvertently opened in error. There is nothing to show that it was actually read; and an apology in written terms was given promptly at the time.[68]A claim can only be bought under the Human Rights Act 1998 if the claimant is a “victim”: see section 7 of the 1998 Act and Article 34 of the Convention. In certain other cases where prisoners have complained of correspondence being wrongly opened it has been held that an appropriate apology, and assurances as to future conduct, coupled with any necessary corrective action, was sufficient to mean that the claimant could no longer be considered a victim: see for example Faulkner v United Kingdom, application 37471/97; Armstrong v United Kingdom, application 48521/99; Ryder v United Kingdom, application 14176/88. On the other hand, there are cases where, in this context, victim status is established. Relevant factors may be the number of incidents of breach and the lack of apology or assurances or action as to future conduct with regard to correcting mistakes. Always important in such a context is the question of whether or not any letters were wrongly opened deliberately. All the same, it is difficult, it seems to me, to establish any clear principle: it seems to be the case that each matter has to be considered on its own facts.[69]In my view, having regard to my primary findings of fact, it is clear enough on which side of the line this particular case falls and it is clear enough that Mr Francis could no longer by styled a “victim” when he commenced these proceedings for the purposes of section 7 of the Act and Article 34 of the Convention. The most important features to my mind are these (although I am not to be taken as saying that all these points are in fact necessary to justify my conclusion that Mr Francis is not a victim in the sense of the Convention). First, only two letters from the MP were involved and neither was read; and so far as letters from lawyers are concerned, JF10 was the only one involved and that too was not read and moreover it was sent on in rather special circumstances. Second, the letters were opened not deliberately but inadvertently, the letters from the MP not even being marked confidential in any shape or form. As to JF10, as I have said, it was a forwarded letter and I accept that it was not read and I accept that it was not opened deliberately. Third, apologies and explanations were given, assurances were offered and steps were taken in terms of reminding the censors’ staff of the position about PSI2005/02 and the rules to prevent reoccurrence. Fourth, there is no question of Mr Francis being singled out or picked on in any way by the censors’ department or anyone else at Belmarsh. Fifth, no damage as such was caused by such openings.[70]Thus Mr Francis has not, in my judgment, established victim status and his claim fails under that heading for that reason.[71]In any event, even if it could be said that he was a victim for the purposes of section 7 (which is not my view) I would refuse, in my discretion, to grant him any relief whether in the form of declaratory relief or in the form of monetary compensation as being just satisfaction. Apologies have been given and corrective steps to the extent necessary taken. It is sufficient that such mistakes as did occur have been identified in this public judgment. Section 8 of the Act makes clear that the court should not award damages by way of just satisfaction unless it considers it necessary to do so; and I am of the clear view that it is not necessary to do so in the circumstances of this case.[72]As to the outgoing letters, for the reasons I have given Mr Francis has on the facts not established any infringement under either Article 8 or Article 10: the stopping of such letters was justified under the prison procedures at the time and was done for legitimate reasons. Furthermore, Mr Francis was in no way prevented from sending out such letters; he was free to do so once he had complied with the prescribed procedures: which indeed he subsequently duly did without any great delay resulting.[73]This claim therefore fails and is dismissed.[74]I return to the fact that I was told that this case, along with the case of Woodin v the Home Office, which was heard by me directly after this particular case, was put before the court as something of a test case. It seems to me, however, that the general guidance has already been enunciated as a matter of European Jurisprudence and by United Kingdom authorities giving effect to that; and this case really can only operate to confirm that ultimately all will depend on the facts of each case: both as to whether sufficient has been proved to constitute a prisoner in such a context as a victim for the purposes of section 7 of the 1998 Act and, if it is, whether the court will grant substantive relief and if so to what extent and in what form. This case does, however, I think, confirm at least some points.(1) First, prisons ordinarily should operate and carefully maintain a full log of correspondence received and a full opened in errors log. That is of particular importance for a prison such as Belmarsh. It may be that slightly different considerations might apply to, for example, open prisoners.(2) Secondly, where solicitors are communicating with prisoners, the precise procedures agreed with the Law Society should be followed. Failure to do so, as this case illustrates, can lead either to a mistake or allegations of a mistake being made and that is something which ought to be avoided. The more carefully such a procedure is followed, the less room there is for asserted error in the case of wrongful opening.[75]In the result there will be judgment for the defendants.

Cited in 2 later judgments