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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ponting, R (on the application of) v Governor of HM Prisons Whitemoor & Anor [2002] EWCA Civ 224 (22nd February, 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/224.html Cite as: [2002] EWCA Civ 224 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR. JUSTICE NEWMAN)
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE CLARKE
and
LADY JUSTICE ARDEN
____________________
THE QUEEN ON THE APPLICATION OF MARTIN PONTING | Appellant | |
- and - | ||
(1) GOVERNOR OF HMP WHITEMOOR, (2) SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Rabinder SINGH and Sam GRODZINKSI (instructed by Treasury Solicitor for the Respondent)
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice SCHIEMANN:
The Prison Service’s Problem
Prisoners’ access to IT must be balanced against security and safety considerations. In line with other prisoner communications, IT access may be restricted where this is necessary for safety reasons, to secure good order and discipline, prevent crime or escape, or protect victims. There is, for example, a potential risk that prisoners could access imported material on disc or the hard drive that might endanger the security of the prison. Similarly, prisoners could store and share information on staff, mis-use information about witnesses and victims, forge documents, generate false documents and create and edit pornography.
Any prisoner who requests access to IT facilities for legal work and demonstrates a real need for this (i.e. refusing the request would raise a real risk of prejudicing the legal proceedings), must be granted access to the IT provided for this purpose for the periods specified. Whether such access must in possession or not will depend on the completion of a risk assessment
It must not, however, be presumed that all requests for IT to assist with legal work must be granted. The prisoner will need to show that such facilities are necessary for the preparation of their legal case. It is also likely that access will often be necessary for only the limited part of that preparation: just because a prisoner can demonstrate a real risk of prejudice without some access to IT facilities, it does not follow that all work on that case requires IT access.
For the duration that IT is provided, staff must be appointed to ensure that computers are used only for the purpose issued, that only licensed copies of soft-ware are being used and that other files on the computer and storage drives do not contain inappropriate or illegal material. They must regularly wipe the hard drive to prevent the build-up of information on hidden files.
All discs must be virus-checked before use, including those sent to prisoners by their legal representative. Establishments must ensure that those sold at the prison shop are virus-free...
When the IT is no longer required by the prisoner for whom it was obtained it must be returned to EDS for storage ... .
3. There is a difference between prisoner’s access to IT, and allowing in possession IT. The former includes IT access in education departments for example .... . In brief, to obtain in possession IT, prisoners need to make application to the Governor, who will make a decision based upon policy procedures and risk.... Where in possession IT is provided prisoners will usually only be allowed to use it outside normal regime requirements.
13. The potential to commit further crime, harass victims, compromise prison security, plan escapes or undermine good order and discipline are all possible consequences of giving prisoner access to IT. Examples of what is possible include:- pirated or corrupt soft-ware, corrupting hard-ware and soft-ware or introducing viruses, saving, hiding or encrypting files that contain unsuitable or illegal material or images, forging official documents, facilitating paedophile rings, establishing data bases on staff, prisoners, or using other information that may threaten prison security.
14. [He gives examples including discs being found containing information on bomb making, drug manufacturing.]
16. … more prisoners have levels of IT knowledge and sophistication with which many establishment staff cannot compete. IT fraud, and the use of technology to commit crime is growing. It is a legitimate aim for the prison service to ensure that prisoners do not have the opportunity to continue their criminal activity, or undermine prison security through IT, during their time in custody. Detecting illegal activity, or preventing IT misuse requires enhanced security procedures, and more IT literate staff than are currently employed by the prison services. In order to address this, there are serious resource implications because staff will need to acquire specialist expertise and IT security knowledge if they are to be able to search hard-drives and discs for evidence of misuse.
17. In terms of security specific measures are needed to prevent potential threats to security, including careful control of floppy discs, virus checking discs, and searching IT for contraband. However, there have been examples of prisoners receiving unauthorised floppy discs, which can jeopardise security and integrity of IT systems as a result.
18. In considering each application made, Governors need to take into account matters relating to the particular prisoner, security intelligence, and issues relating to the establishment’s regime. If a prisoner is given in possession IT, the potential for that prisoner to be bullied or intimidated may grow. Such threats could come from others who share the same cell or wing.
4. HMP Frankland is a maximum security prison … [it] holds some of the most dangerous and serious serial sex offenders currently in custody.
8. Given the type of regime, the nature of the prison population and the security classification of Frankland, the policy it operates is not generally to allow computers in possession because of the overwhelming security concerns they engender. These include:
(i) there are particular concerns that computers could facilitate the establishment of paedophile rings in prisons, by enabling the covert exchange and distribution of information, and the building up of data bases of paedophile material.
(ii) unsupervised use by prisoners of computers may allow them to corrupt soft-ware and hard-ware, and create and introduce viruses into central prison computers.
(iii) personal computers may be used to store security sensitive material in an electronic form, which cannot be easily and quickly searched by prison staff; it may also be the case that material is stored in an encrypted form such as not to be accessible by anyone other than the prisoner.
(iv) When used with modem devices and mobile telephones (which are not permitted but have in the prison service’s experience, been smuggled into prisons), computers can be used as a covert means of communication of outside sources.
“To a lesser degree than modem enabled equipment, the presence of multiple floppy discs is a security risk in that they are easy to secrete, move around and in and out of a prison. Their presence is difficult to detect with hand searching. Electronic wands and portals are problematic because the metal used in the manufacturer of the floppy disc is insubstantial and does not normally show up on these devices.
Printing material is also a security concern in that very professional and authoritative looking documents can be easily reproduced by a reasonably competent individual.
3. … The claimant is currently a category B prisoner, having been sentenced to life imprisonment with a tariff of 6 years following conviction in 1996/1997 of offences and indecent assault and wilfully ill-treating a young person under 16.
18. … the prison service does not have the time or resources to check the hard drive of a prisoner’s machine for material that may affect good order, control, or material which may be used in criminal activity … and would be vulnerable to compensation claims where a prisoner’s personal IT was damaged, or the hard drive was compromised.
20. It is also important that the prison staff are aware at all times of what software each prison’s computer is equipped with. Clearly if each prisoner were allowed to purchase his own particular machine, pre-loaded with its own software, this would not be possible. Instead, all the machines provided by the prison service are provided with software, the nature of which the prison staff will be aware of and familiar with. Once the prisoner has finished needing the machine, the prison service will run its “software deletion” package. This deletes all files on the hard drive and then the approved software package is used to rebuild the hard drive, tailored to and limited to the prisoner’s legal work needs. This deletion process is to be done in front of the prisoner and does not require the opening of any data stored on the machine. This deletion process offers the prison service the simplest and most effective means of preventing the spread of material “via disks or other means” which may be a threat to good order and control, etc.
22. Prison Rules 39(2) and (3) state that the Governor may open legal correspondence if there is reasonable cause to do so. Pass-wording or encrypting files will undermine the effectiveness of the prison service’s ability to this.
23 …Prison rule 31 states that: “Convicted prisoners shall be required to do useful work” during the normal working day. Therefore while the claimant is not in lock-up, he is required to engage in employment at the prison. The regime at HMP Frankland is that during the week the claimant would be able to use the machine from 7.30 p.m. to 8 a.m. the following morning and at weekends from 4.30 p.m. to 8.15 a.m. At the moment I understand that the claimant is “unemployed” – i.e. that he is between jobs.
24. As a final comment, when the claimant is not in lock-up and not working – “periods of association” – there is nothing to prevent (although it is felt to be undesirable) prisoners congregating in others cells, which are not at these times locked. There is therefore a danger, if the claimant were allowed access to facilities in cell during periods of free association, to (sc. of) other prisoners in the same wing gaining access to the facilities. Should this occur, the defendant’s object and desire to deal with applications to facilities on a case by case basis would be defeated.
Prisoners Rights
“17.73 During a cell search staff must examine legal correspondence thoroughly in the absence of the prisoner. Staff must examine the correspondence only so far as necessary to ensure that it is bona fide correspondence between the prisoner and a legal advisor and does not conceal anything else.”
“5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survived the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free-standing, each of them falling for appropriate legal protection: the right of access to a Court; the right of access to legal advice; and the right to communicate confidentially with a legal advisor under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment”.
“...The borderline between mail concerning contemplated litigation and that of a general nature is especially difficult to draw and correspondence with a lawyer may concern matters which have little or nothing to do with litigation. Nevertheless, the Court sees no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concern matters of a private and confidential character. In principle, such letters are privileged under Article 8.
This means that the prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, e.g. opening the letter in the presence of the prisoner. The reading of prisoner’s mail to and from a lawyer, on the other hand should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as “reasonable cause” will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused.”
“Plainly there can. Some examination will be necessary to establish that privileged legal correspondence is what it appears to be and is not a hiding place for illicit materials or information prejudicial to security for good order.”
“While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interest of national security, public safety, the prevention of disorder or crime or for the protection of the rights and freedoms of others, the policy interferes with Mr. Daly’s exercise of his right under Article 8 (1) to an extent much greater than necessity requires.”
The Governor’s task
19. I accept the submission of Mr. Howell that, in deciding wha proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual’s rights?.... The essential purpose of this stage of the enquiry is to see whether the legitimate aim can be achieved by means that do not interfere, or interfere so much, with a person’s rights under the Convention. That inquiry must be undertaken by the decision-maker in the first place.....
20. At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?
25. ... Where the legitimate aim cannot be achieved by alternative means less interfering with a Convention right, the task for decision-maker, when deciding whether to interfere with the right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person’s Convention rights on the other.
The courts’ task
[35]...the function of the court ... is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr. Samaroo’s right to respect for his family life on the one hand and the prevention of crime and disorder on the other. In reaching its decision, the court must recognise and allow the Secretary of State a discretionary area of judgment. In considering the particular factors to which the court will have regard in deciding to what extent (if at all) to defer to the opinion of the Secretary of State, I have been assisted by the discussion at para. 3.26 of Human Rights Law and Practice (Butterworths 1999), of which Lord Lester of Herne Hill Q.C. and David Pannick Q.C. are the general editors. They identify the following factors:
(a) The nature of the Convention rights: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter.
(b) The extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy maker, nor should it be because it is not democratically elected or accountable.
(c) The extent to which the court has special expertise, for example in relation to criminal matters.
(d) Where the rights claimed are of special importance, a ‘high degree of constitutional protection’ will be appropriate. The European Court of Human Rights has recognised as being of special importance rights to freedom of expression and access to the courts.
[38] ...In asking whether the justification has been convincingly established, the domestic court (as indeed the court in Strasbourg) should consider the matter in a realistic manner, and always keep in mind that the decision-maker is entitled to a significant margin of discretion. The Secretary of State must show that he has struck a fair balance between the individual’s right to respect for family life and the prevention of crime and disorder. How much weight he gives to each factor will be the subject of careful scrutiny by the court. The court will interfere with the weight accorded by the decision-maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review
on traditional Wednesbury grounds, where the court usually refuses to examine the weight accorded by the decision-maker to the various relevant factors.
The Conditions which are attacked
Compact between the Governor HMP Frankland and WB3043 Ponting to allow access to IT under PSI 2/2001 “Computers in possession: prisoner’s access to justice”
Having taken into account the application of … Ponting it has been agreed to provide IT for the following legal work: access for civil and criminal legal work and proceedings, subject to being informed of the proceedings on-going at any given time [my italics]
The IT supplied
2. Will be provided in possession between evening lock-up and morning unlock only.
3. Will be stored in the Wing Manger’s offices at all other times
Martin Ponting …. agrees that he
9. Will be allowed a maximum of 10 floppy disks in possession at any one time [sc. and] will allow these floppy disks to be securely stored in sealed bags.
11. Will save documents to floppy disks at the end of each session; these files must not be encrypted, passworded or hidden from view.
12. Will save correspondence to legal advisors on separate disks to those which contain only background information.
14. Will allow documents saved on the floppy disks to be searched in accordance with HMP Frankland’s policy on searching hard copy legal papers.
17. Will only print documents in the presence of an appointed member of staff who will have due regard for the privileged status of legal work.
18. Will purchase floppy disks, paper and other consumables from the prison shop; print cartridges will be supplied by the prison.
“17.70. During a cell search, a prisoner must normally be present when legal documentation kept in the cell is searched. The prisoner must not be present for the rest of the search.
Exceptionally, if a prisoner attempts to disrupt or intimidate staff carrying out a cell search, or whose recent past conduct shows that he/she is likely to do so, the prisoner may be properly excluded from the search of legal documents, as well as the rest of the search.
17.71a. If there is an operational emergency or intelligence that requires immediate action, prison management may also decide to carry out a full cell search without the prisoner.
17.72. During the routine examination of legal papers in any cell search, staff must only examine the correspondence so far as necessary to ensure that it is bona fide legal documentation, and does not conceal anything unauthorised.
17.72a. Where a Governor has reasonable cause to suspect that the content of legal documentation endangers prisoner security, the safety of others, or are (sic) otherwise of a criminal nature, staff may be directed to read the correspondence. In this case, the prisoner must be invited to be present if he has previously been excluded and informed that the correspondence will be read.”
Discussion
“I write too inform you that the Prison Service has carefully reconsidered your client’s application for a word processor and is prepared for him to have a word processor on the basis of his medical need.”
Conclusion
Lord Justice Clarke:
Prisoners’ Rights at Common Law
“three important rights, closely related but free-standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege.”
“under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away by necessary implication”.
“The Secretary of State may make rules for the regulation and management of prisons …. and for the classification, treatment, employment, discipline and control of persons required to be detained therein.”
“The House considered whether the Home Secretary’s evidence showed a pressing need for a measure which restricted prisoners’ attempts to gain access to justice and found none. The more substantial the interference with fundamental rights, the more the court would require by way of justification before it could be satisfied in a public law sense. In this as in other cases there was applied the principle succinctly stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex p Pierson [1998] AC 539, 575:
“From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.””
“In my opinion the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners. Section 47(1) of the 1952 Act does not authorise such excessive intrusion, and the Home Secretary had no power to lay down or implement the policy in its present form. I would therefore declare paragraphs 17.69 to 17.74 of the Security Manual to be unlawful and void in so far as they provide that prisoners must always be absent when privileged legal correspondence held by them in their cells is examined by prison officers.”
Prisoners’ Convention Rights
“Right to respect for private and family life
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.”
“reasonable opportunity of presenting his case to court under conditions which do not place him at a substantial disadvantage vis a vis his opponent.”
“The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.”
“Lord Clyde observed, at 80, that in determining whether a limitation, whether by act, rule or decision, is arbitrary or excessive the court should ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
Clearly, these criteria are more precise and more sophisticated than the traditional grounds ofreview
.”
“What is the difference for the disposal of concrete cases? …. The starting point is that there is an overlap between the traditional grounds ofreview
and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of
review
is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of
review
inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights.”
“In other words the intensity ofreview
, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.”
“the task for the decision maker, when deciding whether to interfere with the right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person’s Convention rights on the other.”
IT Facilities and Mr Ponting
“Having taken into account the application of …. Ponting it has been agreed to provide IT under PSI 2/2001 “Computers in possession: prisoner’s access to justice”.
The IT supplied
1. will not be used for other correspondence not associated with legal work such as request/complaints;
2. will be provided in possession between evening lock up and morning unlock only;
3. will be stored in the wing manager’s office at all other times;
4. is the property of EDS;
5. will be periodically checked by appointed staff.
6. will use the IT solely for the legal work stated above;
7. will have responsibility for all hardware while in possession;
8. will not load any software or illegal material onto the IT provided;
9. will be allowed a maximum of 10 floppy discs in possession at any one time will allow these floppy discs to be securely stored in sealed bags;
10. will ensure that all floppy discs are listed on an inventory which is kept for this purpose, and that those received subsequently are added to the register;
11. will save documents to floppy discs at the end of each session; these files must not be encrypted, passworded or hidden from view;
12. will save correspondence to legal advisers on separate discs to those which contain only background information;
13. will allow all floppy discs to be periodically checked for viruses by appointed staff;
14. will allow documents saved on the floppy discs to be searched in accordance with HMP Frankland’s policy on searching hard copy legal papers;
15. will not damage or destroy the IT provided;
16. will comply with the rules surrounding prisoner’s communication;
17. will only print documents in the presence of an appointed member of staff who will have due regard for the privileged status of legal work;
18. will purchase floppy discs, paper and other consumables from the prison shop; print cartridges will be supplied by the prison;
19. has been advised of health and safety issues relevant to the use of IT.”
The Italicised Words
Conditions 2 and 3.
Condition 9
Condition 11
Condition 12.
Condition 14
Condition 17.
Condition 18
Conclusion
Lady Justice Arden :
“Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’ (Golder v UK para.38). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (Klass v UK 2 EHRR 214, para.49).”
“Now, following the incorporation of the convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy. On this aspect of the case, I agree with and adopt the observations of my noble and learned friend Lord Steyn which I have had the opportunity of reading in draft.”
Note 1 99p [Back] Note 2 100 [Back] Note 3 112 [Back] Note 4 119 [Back] Note 5 91
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