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Ponting, R (on the application of) v Governor of HM Prisons Whitemoor & Anor  EWCA Civ 224 (22nd February, 2002)
| || ||Neutral Citation Number:  EWCA Civ 224|
| || ||Case No: C/01/0830|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR. JUSTICE NEWMAN)
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||22nd February 2002|
B e f o r e :
LORD JUSTICE SCHIEMANN
LORD JUSTICE CLARKE
LADY JUSTICE ARDEN
| || |
THE QUEEN ON THE APPLICATION OF MARTIN PONTING
| ||- and -|
| ||(1) GOVERNOR OF HMP WHITEMOOR, |
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
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)
Colin ROSS-MUNRO Q.C. and Arthur BLAKE (instructed by Messrs. Hickman & Rose for the Appellant)
Rabinder SINGH and Sam GRODZINKSI (instructed by Treasury Solicitor for the Respondent)
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice SCHIEMANN:
- This appeal, by leave of Sedley L.J., against a decision of Newman J potentially raises some points of general importance in relation to a convicted prisoner’s rights of access to justice.
- Mr Ponting is a convicted prisoner. He has a degree of dyslexia and an intelligence quotient in the region of 77/80. His condition affects his grammar and spelling and the speed at which he can work. He wishes to sue a number of persons. He has four cases on-going at the moment. We have very little detail as to what any of them involve. We understand that he has a claim against the Wiltshire County Council in relation to abuse he allegedly suffered as a child in a Council run institution; a claim against the Home Office for injuries which he received whilst in prison; an application to the Criminal Cases Review Commission in relation to his sentence; and a civil claim against Broadmoor Hospital for lack of treatment whilst in custody. In two of these cases he has instructed solicitors to act on his behalf; in two he is acting on his own. He wished to use his own computer and printer in order to prepare his case, communicate with his solicitors and print the relevant documents but the prison authorities denied him that use. He accepts for present purposes that they were entitled so to do.
- The prison authorities gave him access to another computer, word processing package and printer. He accepts for present purposes the suitability of that computer, word processing package and printer. What he objects to is some of the conditions which regulate his use of the computer and printer. He is only allowed to use them if he signs the terms of what is described as a compact between him and the authorities. The precise terms of the compact in issue I shall set out later in this judgement. At this stage it is enough to indicate that those terms restrict the use of the computer to the prisoner’s cell, limit the times during which the computer can be in the prisoner’s possession, prescribe conditions in which it and all discs are to be stored and make various provisions for the supervision of that use and for the inspection of materials.
- We understand that Mr Ponting is no longer at HMP Frankland. However, we also understand that his present prison operates an identical scheme and both sides have asked us to ignore the fact that he has moved. We are content to do so.
The Prison Service’s Problem
- Why then do the prison service wish to hedge about the use of the computer by all these conditions? The evidence comes before us in a not wholly satisfactory form in a number of different documents. The background is that the prison rules which were in force 20 years ago made no provision for the use of computers by prisoners. Since then there have been two broad developments. First, the population at large uses computers to an increasing extent, computers having become cheaper and more user friendly. Second, there have been various legal changes – in particular the enactment of the Human Rights Act 1998 – which have led the prison service to place a greater degree of emphasis in running a prison on prisoners’ human rights. However, the basic problems posed to the authorities charged with running prisons remain.
- The following quotations from the evidence before us illustrate the position of the respondents.
- A prison service instruction with an implementation date of 1 2. 2001 contains the following:
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 ... .
- A Witness statement by Barney Clifford contains the following
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.
- The witness statement of Allan Chapman from the Directorate of High Security Prisons contains the following
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.
- The witness statement of David Booth contains the following
“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.
- A written statement by Ms Eyre from the Treasury Solicitor’s Department indicates the nature of the regime which prison governors operate. She says
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.
- In this context we are concerned with two rights – the right to access to the courts and the right to privacy of correspondence. The legal background is now well settled. The leading case is The Queen on the application of Daly v Secretary of State for the Home Department  UKHL 26,  2 WLR 1622 which was decided after the decision against which Mr Ponting appeals. While a number of speeches were delivered everyone agreed with the speech of Lord Bingham of Cornhill.
- Daly was a case which was concerned with the legality of a policy by the Home Secretary governing the searching of cells occupied by prisoners in closed prisons in England and Wales. The relevant paragraph read:
“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.”
- The case was argued both under the Common Law as it was before the Human Rights Act came into force and under that Act. Lord Bingham made clear in paragraph 23 that in that case the result was the same whichever way one approached it.
- Mr. Daly confined his challenge to a single aspect of the policy: the requirement that a prisoner may not be present when his legally privileged correspondence is examined by prison officers. He contended that a blanket policy of requiring the absence of prisoners when their legally privileged correspondence is opened infringes, to an unnecessary and impermissible extent, a basic right recognised both at Common Law and under the European Convention.
- Lord Bingham made clear that the ambit of the argument before the House of Lords was very narrow. Mr. Daly accepted the need for random searches of prisoner’s cells for the purpose of security, preventing crime and maintaining order and discipline. He accepted that such searches might properly be carried out in the absence of the resident prisoner. He accepted the need for prison officers to examine legal correspondence held by prisoners in their cells to make sure that it is bona fide legal correspondence and that such correspondence is not used as a convenient hiding place to secrete drugs or illicit materials of any kind, or to keep escape plans or any records of illegal activity. He did not claim that privileged legal correspondence is immune from all examinations. He contended only that such examinations should ordinarily take place in the presence of the prisoner whose correspondence it was.
- The Home Secretary for his part accepted that prison officers might not read a prisoner’s privileged legal correspondence during a cell search carried out in the absence of the prisoner. But he regarded the right to examine such correspondence as necessary and regarded the absence of the prisoner during the examination as a necessary feature of the policy.
- Mr. Daly submitted that the policy infringed in a significant way his common law right that the confidentiality of privileged legal correspondence be maintained. He submitted that it did so for 2 related reasons: first, because knowledge that such correspondence may be looked at by prison officers in the absence of the prisoner inhibits the prisoner’s willingness to communicate with his legal advisors in terms of unreserved candour; and secondly, because there must be a risk, if the prisoner is not present, that the officers will stray beyond their limited role in examining legal correspondence.
- Lord Bingham said:
“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”.
- He cited the following passage from Campbell v United Kingdom (1992) 15 EHRR 137 where in paragraph 48 of its judgment the Court said:
“...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.”
- Lord Bingham cited R v Secretary of State for the Home Department, ex parte Simms  2 AC 115 and in particular the conclusion that the more substantial the interference with fundamental rights the more the Court would require by way of justification before it could be satisfied that the interference was reasonable in a public law sense.
- Lord Bingham held that the policy infringed Mr. Daly’s common law right to legal professional privilege and then asked himself whether there could be any ground for infringing in any way a prisoner’s right to maintain the confidentiality of his privileged legal correspondence. The answer to that question is in paragraph 17 where he said :
“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.”
- He then considered the question of justification. He concluded in paragraph 22 that any rule should provide for a general right for prisoners to be present when privileged legal correspondence is examined, and in practice this would probably mean any legal documentation to avoid time-wasting debate about which documents are privileged and which are not. But the rule must provide for the exclusion of the prisoner while the examination takes place if there is or is reasonably believed to be good cause for excluding him to safeguard the efficacy of the search, and the rule must permit the prison authorities to respond to sudden operational emergencies or urgent intelligence.
- In paragraph 23 Lord Bingham referred to Article 8 (1) of the European Convention and Mr. Daly’s right to respect for his correspondence and continued:
“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.”
- In Brown v Stott (Procurator Fiscal Dunfermline) and another  2WLR 817 several of the speeches in the Privy Council refer with manifest approval to a number of decisions of the European Court in Strasbourg in particular Golder v United Kingdom (1975) 1 EHRR 524 in which it was held that it would be inconceivable that Article 6 should describe in detail the procedural guarantees afforded to parties in a pending law suit and should not first protect that which alone makes it possible to benefit from such guarantee namely access to a Court.
The Governor’s task
- The Governor of the prison has the task of balancing the prisoner’s rights against the various considerations which point towards a restriction of those rights in the public interest. The legal rules prescribing what should be his approach to this task are now established. He must consider whether the restriction in question pursues a legitimate aim. He must decide whether that legitimate aim can be achieved by means which are less interfering of the prisoner’s rights. If he is satisfied that this can not be done, he must then go on to consider whether the restriction has an excessive or disproportionate effect on the interests of the prisoner. All this appears from Samaroo and Sezek v Secretary of State for the Home Department  EWCA Civ 1189,  UKHRR 1150 in which Dyson LJ. delivered a judgment with which Dame Elizabeth Butler-Sloss P. and Thorpe LJ. agreed. The challenge there was to a deportation order made against a drug dealer. It had been made on the grounds that the Secretary of State considered his deportation to be “conducive to the public good”. It was conceded that this was a legitimate aim for the state to pursue. Mr. Samaroo challenged that order on the grounds that it would interfere with his right to family life under Article 8(1). Lord Justice Dyson said this:
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
- This court has established this in Samaroo. As Dyson L.J. put it -
...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.
 ...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
- I turn now to consider the conditions under attack. They read as follows:-
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.
- The policy referred to in condition 12 is contained in the security manual in the following paragraphs:
“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.”
- Before us, Mr Ponting’s contentions were advanced on his behalf by Mr Ross-Munro Q.C.. Mr Ross-Munro submitted that 1. To deny a prisoner in Mr Ponting’s position the right to the use of a computer for the purposes of preparing for litigation is an infringement of his rights under Articles 6 and 8 of the Human Rights Convention and that 2. The restrictions imposed upon those rights by refusing access to the computer unless he is prepared to abide by the conditions set out in the Compact amount to an infringement of those rights.
- For my part, I am prepared to proceed on the basis that circumstances can exist in which to deprive a prisoner of access to a computer can amount to an interference with his right of access to the Court and a breach of his rights under Article 6.
- In the present case Mr Ponting has persuaded the prison authorities that he has a medical need for a computer. The Treasury Solicitor in a letter dated 21 June 2000 stated
“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.”
- I consider that in those circumstances we must proceed on the basis that access to justice would in at least one of the four cases which he is currently pursuing case be impaired if he did not have such a computer. I express no view on the question whether every prisoner who wishes to litigate must be provided with access to a computer. While there is no doubt that from the court’s point of view it is easier to read printed than hand-written material, the discipline imposed by use of pen and ink can restrain prolixity. Prolixity often makes it more difficult for the court to do justice by coming to the heart of a case. The difficulty in refusing universal access is that, given that there are some cases which do require the use of a computer, how is the governor to determine whether a particular case falls into this class without infringing the prisoner’s right of privacy. For the reason which I have given we do not need to broach this problem in the present case.
- It is conceded that the objectives behind the policy are legitimate ones. What remains therefore is to look at each of the Conditions which has been attacked and to consider whether it impacts on Mr. Ponting’s human rights, if so whether the objective of the measure can be achieved by means which are no less interfering of Mr. Ponting’s rights and then to consider whether the measure is as an excessive or disproportionate affect on Mr. Ponting’s interest.
- The italicised words. In their existing form the meaning of these words is not clear. In particular it is not clear whether the provision of a computer is being made conditional upon the prisoner first informing the Governor of the nature of the proceedings he proposes to issue. However, we were told in submissions that the words were merely intended to oblige the prisoner to inform the Governor when any existing proceedings have come to a conclusion. To that I see no objection and indeed there is no objection on the part of the prisoner. This point can therefore be met by substituting some words such as “he will inform the Governor when any proceedings in respect of which he has used the computer are determined”.
- Conditions 2 and 3. The only objection made to Condition 2. Mr. Ross-Munro submits that the limitation in hours during which his client may use the computer is such that it constitutes an inhibition on his rights of access to the Courts. I fully understand his client’s irritation at not having 24 hour access to the computer, but there are no doubt many irritating features to a prison life. While I see room for argument as to whether this condition is strictly necessary, especially in the case of a man who has not been given any work, we do not need to consider those arguments in detail in these proceedings which are predicated upon an interference with the prisoner’s human rights. Insofar as there is an attack on traditional judicial review grounds, I, for reasons more fully set out in the judgment of Lady Justice Arden do not accept that the imposition of these two conditions was illegal. I am not persuaded that the claimant has shown that his human rights of access have been breached. It does not seem to me that if he follows the regime set out in the conditions he will be deprived of his right of access to the Courts or significantly hindered in its exercise.
- Conditions 9 and 12. There is no objection to the storage condition, however it is submitted without supporting evidence that 10 floppies are not enough for Mr. Ponting’s litigation. I do not consider that the imposition of either of these conditions interferes with Mr. Ponting’s human rights. They are minor irritants unworthy of elevation into the category of infringements of human rights protected by the Courts. Condition 9 was imposed for operational reasons and Condition 12 in order to facilitate respect for legal professional privilege if search is required. I see no basis for any successful challenge on traditional judicial review grounds.
- Condition 11. The only objection is to the requirement that the files must not be passworded. I accept that this amounts to sanctioning an interference both with the prisoner’s right of access to the Courts and with his privacy. However I regard that interference as being required by legitimate policy considerations and as not having either an excessive or disproportionate affect on Mr. Ponting’s interest. If information comes to the authorities that Mr. Ponting has a complex escape plan on which he is working and which he keeps on one of his floppy’s there would be ample reason for the authorities to wish to look at it. If the file has a password not known to the authorities then access is in effect denied – at any event at the level of IT skills readily available in prison. The authority might well wish to have a look at it with a view to policing the next steps. In my judgment the Governor was entitled to reach the conclusion that this consideration out-weighed Mr. Ponting’s natural desire for privacy.
- Condition 14. Originally the objection was that it was not known what the policy was. Mr. Rabinder Singh explained that the condition was intended to refer to whatever policy might be in force at any given moment and that the current policy was as set out above in paragraph 29. The objection then became that to agree to Condition 14 was to agree to something unknown in advance. There are 2 separate potential problems. One is that the policy may change from time to time and the prisoner is being asked to give a blank cheque. The second is whether the provisions of the security manual as cited in paragraph 29 themselves comply with Human Rights Acts requirement. As to the second potential problem it has not been argued that the provisions of the security manual are not HRA compliant. It is therefore not an actual problem. As to the first potential problem this can be solved by interpreting the condition as if the word “lawful” were inserted before “policy”. This seems to me to be a natural and proper interpretation.
- Condition 17. The objection to this was that the presence of the member of staff during the printing out process might not prevent him from seeing what was being printed out and might in any event inhibit Mr. Ponting from writing frankly for fear that a member of staff might see his words. I would accept that there is an interference here with Mr. Ponting’s human rights. However, adopting the approach in Samaroo I am however satisfied that the Governor’s conclusion that the legitimate objectives required the imposition of those requirements was a lawful one with which the Court cannot interfere.
- Condition 18. This condition does not to my mind engage Mr. Ponting’s Convention rights. In any event I would accept the submission that is reasonable to require prisoners to acquire discs from within the prison in order to ensure that there is no opportunity to introduce doctored or unlawful material into the prison on a disc and to ensure that there is no virus or other harmful material thus introduced.
- I would dismiss this appeal.
Lord Justice Clarke:
- Subject to one point, which relates to condition 2 in the compact to which he has referred, I agree with the conclusions of Schiemann LJ. Since the matter was before the judge there have been important developments, both on the law and on the facts. As a result of those developments, the evidence is less full or satisfactory than it would no doubt otherwise have been.
- When the judge decided the application for judicial review the House of Lords had not yet decided R v Secretary of State for the Home Department ex p Daly  UKHL 26,  2 WLR 1622. It follows of course that this court had not decided Samaroo and Sezek v Secretary of State for the Home Department  EWCA Civ 1139,  UKHRR 1150, which elucidates Daly. The principles now to be applied are not therefore the same as those applied by the judge, who applied the traditional Wednesbury rationality test.
- Those cases demonstrate that the correct approach is first to identify the right relied upon by the applicant and then, if a right is in principle established either at common law or under the Convention, in each case to consider the limitations on the right and the correct approach of the court on an application for judicial review made on the basis that the applicant’s rights have been infringed.
Prisoners’ Rights at Common Law
- Schiemann LJ has already quoted paragraph 5 of Lord Bingham’s speech in Daly with which the other members of the House of Lords agreed. In particular Lord Bingham there observed that among the common law rights which survive imprisonment are
“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.”
- Lord Bingham also observed (in paragraph 6) that in Raymond v Honey  1 AC 1 the House of Lords affirmed at p 10, per Lord Wilberforce, that
“under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away by necessary implication”.
- See also R v Secretary of State for the Home Department ex p Anderson  QB 778 per Robert Goff LJ at p 790.
- In Daly the House of Lords discussed limitations on prisoners’ rights in the context of section 47(1) of the Prison Act 1952, which provides as follows:
“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.”
- In Daly the House was concerned with a blanket policy which permitted examination by prison officers of privileged legal correspondence in the absence of the prisoner during a search of the prisoner’s cell. It held that that blanket policy was unlawful as an unjustified interference with the prisoner’s common law right of unimpeded access to the courts.
- Lord Bingham observed (in paragraph 10), by reference to the decision in R v Secretary of State for the Home Department ex p Leech  QB 198, that legal professional privilege is an important auxiliary principle serving to buttress the cardinal principles of unimpeded access to the courts and to legal advice. Lord Bingham observed that the court in Leech accepted that section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offences against the criminal law and safeguarding national security.
- Lord Bingham further observed (in paragraph 12) that the decision of this court in Leech was endorsed and approved in R v Secretary of State for the Home Department ex p Simms  2 AC 115, where the House was considering a prohibition on visits to serving prisoners by journalists investigating whether the prisoner had been wrongly convicted except on terms which precluded them from publishing material obtained during such visits. Lord Bingham expressed the correct approach in this way:
“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  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.””
- The House held that the policy complained of in Daly was unlawful. Lord Bingham said in paragraph 21:
“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.”
- In the instant case Mr Ponting’s original case was that he is dyslexic and that he needed to use his word processor in order to advance his various actions to which Schiemann LJ has referred. It was that a refusal by the prison authorities to allow him to use his word processor unfairly disadvantaged him and was an infringement of his right of access to the courts and that the refusal was not justified by any of the objectives which the refusal was designed to achieve.
- Before considering Mr Ponting’s case further in the light of more recent developments, I turn to the position under the Convention.
Prisoners’ Convention Rights
- In Daly, as Schiemann LJ has observed, the House of Lords also considered the provision in Article 8 of the Convention, which provides:
“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.”
- The House of Lords held in Daly that the prison policy infringed Article 8(1) and that it was not justified by Article 8(2) because, as Lord Bingham put it in paragraph 23, the policy interfered with the exercise of Mr Daly’s rights under Article 8(1) to an extent much greater than necessity required. Some reliance is I think placed on Article 8 here, but Mr Ponting relies principally on Article 6, which of course provides for a right to a fair trial.
- Mr Rabinder Singh correctly accepts on behalf of the respondent that under Article 6, every party to civil and criminal proceedings must have a
“reasonable opportunity of presenting his case to court under conditions which do not place him at a substantial disadvantage vis a vis his opponent.”
- See De Haes v Belgium (1997) 25 EHRR 1, paragraph 53. There must be equality of arms.
- However, Mr Rabinder Singh submits that, while the right to a fair trial under Article 6 is absolute, rights implied in Article 6, including the right to equality of arms, are subject to qualification. He submits that they are qualified to the extent that such qualification is necessary to achieve a legitimate aim in the public interest, provided that the qualification is proportionate to achieve that aim. He relies upon the decision of the Privy Council in Brown v Scott (Procurator Fiscal, Dunfermline)  2 WLR 817. I would accept Mr Rabinder Singh’s submissions on the basis set out below.
- In Brown v Scott Lord Bingham observed (at p 827) that equality of arms between the prosecutor and defendant has been recognised by the European Court of Human rights as lying at the heart of a fair trial. He was there referring to a criminal trial, but I see no reason why the same principle should not apply to the trial of a civil action. Lord Bingham made it clear that the right was not absolute but was subject to limitations. The nature of the permissible limitations has been variously described in the cases, including a number of decisions of the European Court of Human Rights and, most recently in Brown v Stott, where the judgments refer to several such cases. Lord Bingham put it thus (at p 836):
“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.”
- The cases thus show that any qualification of the right of equality of arms must represent no greater qualification than the situation calls for and must of course be proportionate. To my mind that principle is not significantly different from the approach to a prisoner’s common law rights identified in Daly.
- Mr Ponting’s case was initially that the refusal to allow him to use his own word processor was to deny him, as a dyslexic, equality of arms with those against whom he was litigating or intending to litigate and that it was not justified or called for by reference to any legitimate purpose; nor was it proportionate. However, before considering Mr Ponting’s rights in the context of the facts which exist now, it is convenient to say a word about judicial review.
- In Daly the House of Lords held that the policy relied upon by the prison service was irrational in a traditional Wednesbury sense, but it also held that it was unlawful because it amounted to an unjustified interference with Mr Daly’s rights under Article 8(1). The House made it clear that the approach to judicial review in a Convention case, where the proportionality of the impugned decision is in issue is not the same as irrationality or unreasonableness in the traditional public law sense.
- Lord Steyn, with whom the other members of the House including Lord Bingham agreed, drew attention (in paragraph 27) to the three stage test adopted by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 99 and said:
“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 of review.”
- Lord Steyn continued:
“What is the difference for the disposal of concrete cases? …. The starting point is that there is an overlap between the traditional grounds of review 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  QB 517, 554 is not necessarily appropriate to the protection of human rights.”
- Lord Steyn then quoted a passage from the judgment of the European Court of Human Rights in Smith and Grady v United Kingdom (1999) 29 EHRR 493 at paragraph 138 and added:
“In other words the intensity of review, 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.”
- I should add that in paragraph 28 Lord Steyn stressed that this approach does not mean that there has been a shift to merits review, approving the opinion of Professor Jowell that the respective roles of judges and administrators are fundamentally different and will remain so. As so often, all will depend on the circumstances. As Lord Steyn put it, in law context is everything.
- As Schiemann LJ has observed, in Samaroo and Sezek Dyson LJ (with whom Butler-Sloss P and Thorpe LJ agreed) identified at paragraphs 19 and 20 what will usually be two stages in Lord Steyn’s proportionality test (my emphasis). I have emphasised the word usually because I do not think that it will always be possible to divide the analysis into two distinct stages. However, where it is, at the first stage the question is whether the objective of the rule can be achieved by means which are less interfering of an individual’s rights, which is in the first instance a question for the decision maker. If the answer is yes, a second question arises for the decision maker, namely whether the rule has an excessive or disproportionate effect on the interests of affected persons. In paragraph 25 (more fully quoted by Schiemann LJ) Dyson LJ said that at that stage
“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.”
- What then is the role of the national court? After considering a number of authorities, including The Queen on the application of Mahmood v Secretary of State for the Home Department  1 WLR 840 as clarified in Daly, Dyson L.J. said in paragraph 35 that the function of the court is to decide whether the decision maker has struck the balance fairly between the conflicting interests of the applicant on the one hand and the legitimate aim of the relevant rule on the other and in doing so the court must, as Dyson LJ put it, recognise and allow the decision maker a discretionary area of judgment. Schiemann LJ has quoted some of the relevant considerations which were set out by Dyson LJ and I will not repeat them here. In the end the question is whether, making all proper allowances for the fact that the court is not the decision maker, the justification for interfering with or derogating from the applicant’s Convention rights (or what would otherwise be such an interference) has been “convincingly established”: see Samaroo and Sezek per Dyson LJ at paragraph 39, quoting Barthold v Germany (1985) 7 EHRR 383, 403.
- In Daly Lord Cooke suggested (at paragraph 32) that the day will come when the traditional Wednesbury test will be recognised as too restrictive, even at common law. It was not, however, submitted that it is necessary to consider that suggestion on the facts of this case.
IT Facilities and Mr Ponting
- Mr Ponting does not challenge the general policy now adopted by the prison service, whether relating to searches or to the provision of IT facilities to prisoners. As to the former, a new policy was introduced after the decision of the House of Lords in Daly, with the result that the blanket policy held to be unlawful is now different.
- As to the latter, Schiemann LJ has set out the prison service instruction in force as from 1st February 2001, which shows the balance which the prison authorities have sought to achieve between prisoners’ rights and the circumstances in which the restriction of IT access “may be necessary for safety reasons, to secure good order and discipline, prevent crime or escape, or protect victims”. Since Mr Ponting does not say that the policy contained in the instruction or the instruction itself is unlawful, it would not be appropriate to comment on it in detail. I would, however, make these few observations.
- While I would not go so far as to hold that we have advanced to a stage where access to IT facilities is a precondition of having unimpeded access to the courts, it does seem to me that there are likely to be a significant number of prisoners in respect of whom it can properly be said that without such facilities they are at a sufficient disadvantage vis a vis the other party to litigation such that there is inequality of arms between them. It struck me during the course of the argument that there is much to be said for the proposition that a prisoner suing a public authority represented, say, by the Treasury Solicitor, is seriously disadvantaged if he can only use a pencil, biro or pen while his opponent is equipped with a battery of word processors.
- All will no doubt depend upon the circumstances. There may be many legitimate reasons for saying that a prisoner should not be permitted the use of a word processor, including both security and (especially where the prisoner is asking to use a prison service computer) resource considerations, but it seems to me to be at least arguable that a prisoner conducting litigation of any complexity who is able to provide his own word processor, but who is refused permission to so, is deprived of a reasonable opportunity of presenting his case to court under conditions which do not place him at a substantial disadvantage vis a vis his opponent. I should perhaps add that we are not concerned here with the provision of IT facilities going beyond the use of a computer as a word processor. The security implications of permitting access to the internet are plainly much greater than those of permitting access to a word processor which cannot be connected to the internet.
- Finally, I would add this general observation. The instruction suggests that the test to be applied to the question whether a prisoner should be entitled to access to IT facilities is whether the prisoner can show that it is necessary to use them for the purpose of the preparation of his legal case. For my part, I am not persuaded that the test should be one of necessity as opposed to reasonableness.
- Mr Ponting does not challenge the policy set out in the prison instruction because, in the letter to him from the Treasury Solicitor dated 21 June 2000 quoted by Schiemann LJ, he was informed that the prison service was prepared for him to have a word processor “on the basis of his medical need”. It is I think clear that the prison service accepted that, given his dyslexia, he needed a word processor in order to be able to conduct his litigation. In these circumstances, it is (as I see it) accepted that in Mr Ponting’s case refusal to permit him any use of a word processor would infringe his right of access to the courts and his right to equality of arms and thus to a fair trial. If that is not accepted by the respondents, in the light of the principles stated in the authorities discussed above, I would nevertheless hold that both those rights would be infringed if he were refused any use of a word processor. On that basis there would be an infringement of his rights both at common law and under Article 6 of the Convention.
- As Schiemann LJ has demonstrated, Mr Ponting’s complaint is now limited to the terms of the compact which he was required to sign as the conditions on which the Governor of HMP Frankland would permit him to use the word processor. Since the underlying policy set out in the instruction is not challenged, it appears to me that, in the light of the authorities, the essential questions for the Governor in the case of each condition were whether, given the decision to allow Mr Ponting access to a word processor, the legitimate aim on which the restriction on its use was based could be achieved by means which were less interfering with his rights and whether it would have an excessive or disproportionate effect on the exercise of those rights in the sense discussed above. In the present case, in the context of the conditions in the compact, I am not sure those questions are essentially different. Put another way, it may be that, as Arden LJ puts it, Mr Ponting’s rights are not capable of clear cut assessment at the first stage of the enquiry referred to by Dyson LJ
- One of the problems facing the court here is that the decision of the Governor was of course taken before the decision in Daly so that he cannot have expressly directed himself by reference to the principles stated in it. However that may be, the question identified by Dyson LJ in Samaroo and Sezek remains, namely whether the Governor struck the right balance between the conflicting interests of Mr Ponting on the one hand and the legitimate aim of the restrictions on the other. In answering that question the court must recognise and allow the Governor a discretionary area of judgment and, making all proper allowances for the fact that it is not the decision maker, decide whether the respondent has convincingly established the justification for interfering or derogating from Mr Ponting’s Convention rights. It is, as I understand it, agreed that we should consider that question even though Mr Ponting is no longer at HMP Frankland.
- In this regard, it does seem to me, consistently with the approach in the cases to which we have been referred, that it is for the respondent to show that the restriction on the right to use the word processor was proportionate. Once it was accepted that Mr Ponting needed to use a word processor in order to advance his case in his various sets of legal proceedings, it seems to me that it was a potential infringement of his right to equality or arms to restrict his use of it. It was thus for the Governor to justify the restriction, but, whether that is strictly so or not, it is to my mind incumbent on the respondent to put some evidence before the court explaining the reasons for the decision which it is sought to review. In the absence of such evidence, it is difficult if not impossible for the court to carry out the intensity of review referred to by Lord Steyn.
- The questions for decision are now very narrow. Schiemann LJ has set out the conditions of the compact (as subsequently amended by the respondents) which are, as he put it, under attack. They are part of a total of 19 numbered conditions as follows:
“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.
- Martin Pointing WB3043 agrees that he
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.”
- Mr Ponting does not, or does not now, object to conditions 1, 4 to 8, 10, 13, 15, 16 and 19. Schiemann LJ has set out Mr Ross-Munro’s submissions with regard to each of the others. The only conditions upon which I wish to comment are as follows.
The Italicised Words
- For my part, I do not see any problem with the italicised words provided that they are read in their context. Thus I do not see that there is any objection to Mr Ponting informing the Governor of any legal proceedings which are on foot, at any rate after they have been served. The context is, however, important. As I read it, access is to be for “civil legal work and proceedings” subject to information being given as to the proceedings. Legal professional privilege is not, of course, confined to proceedings on foot, but covers legal advice in connection with proposed proceedings. I do not read the italicised words as imposing any obligation to provide information with regard to “legal work” as opposed to “proceedings”. It follows that I do not see any objection to the italicised words. I would only add that I can see no justification for requiring Mr Ponting to inform the Governor of contemplated proceedings. In these circumstances, in order to avoid possible confusion as to whether the words include future proceedings, I agree some such words as those suggested by Schiemann LJ might sensibly be substituted.
Conditions 2 and 3.
- This is the one point upon which my approach is not quite the same as that of Schiemann LJ. Nor is it the same as that of Arden LJ, whose judgment I have seen in draft. Mr Ross-Munro submits that a blanket refusal not to allow Mr Ponting access to the word processor except between evening lock-up and morning unlock is both unreasonable and disproportionate. I agree. Most litigants would expect to be able to work on their cases during the day. To my mind prisoners should be able to do so too, unless there is good reason to the contrary. There may be many good reasons for imposing such a restriction upon a particular prisoner or from time to time, but, even making every allowance for the discretion properly to be afforded to the Governor, I do not think that the need for such a blanket refusal has been convincingly established.
- As I see it, the problem here is that there is no evidence of the reasons why the Governor of HMP Frankland in fact imposed this condition. There is no evidence from him or, indeed, from anyone else explaining his decision. Schiemann LJ has summarised the relevant evidence. He has referred to witness statements made by Mr Barney Clifford, Mr Allan Chapman, Mr David Booth and Ms Helen Eyre. All but the statement of Ms Eyre were made before the prison service instruction (“PSI”) dated 1st February 2001, which is known as PSI 2/2001. It follows that they were all made before the decision of the Governor as to what compact to offer Mr Ponting. It is by no means surprising that statements were obtained at that time because Mr Ponting launched his application for judicial review long before the PSI.
- However, as appears from the extracts quoted by Schiemann LJ, the statements do not assist in deciding the question whether the restriction in condition 2 is proportionate, although I note that in paragraph 18 of the statement of Mr Clifford, who is or was attached to the Security Group at head office, he says that, in considering each application for IT, Governors need to take into account matters relating to the particular prisoner, security intelligence and issues relating to the establishment’s regime. It thus appears, as one would expect, that it is prison service policy to consider the case of each prisoner separately and not to impose a blanket policy.
- The same can be seen from PSI 2/2001 itself, which includes the statement that whether access to IT facilities will be “in possession” or not will depend on the completion of a risk assessment. It thus seems that there should have been some form of risk assessment carried out before deciding what facilities should be offered to Mr Ponting and on what terms. No evidence of any such risk assessment has been put before the court. Indeed there is no evidence of what evaluation was carried out by or on behalf of the Governor or the prison service before concluding that Mr Ponting should not be permitted to use a word processor in his cell during the day even when he was not working and there was, and was likely to be, no work for him. There is, so far as I am aware, no evidence that Mr Ponting would present a particular risk if he were allowed to use a computer in his cell during the day.
- The only evidence dated after 1st February 2001 is the statement of Ms Eyre, who is a lawyer in the Treasury Solicitor’s Department, from which Schiemann LJ has quoted at some length. It is plain from his extracts that much of her statement is dealing with Mr Ponting’s case that he should be permitted to use his own computer. She refers to Mr Ponting’s duty to work but does not address the question what work was or was likely to be available to him. The other evidence suggests that there was none. She does address the risk of prisoners in the same wing gaining access to the IT facilities if provided to a cell other than during lock-up, but only does so in a general way and not by reference to Mr Ponting and any risks which he might pose.
- In the absence of evidence justifying the restriction in the case of Mr Ponting, I would hold that a blanket refusal such as that in condition 2 is not justifiable as being outside the acceptable range of the exercise of the Governor’s discretion, that it is disproportionate in the sense used in Daly and is thus unlawful.
- I agree with both Schiemann and Arden LJJ that there may have been good reasons for the restriction. Thus there are many possible reasons why it would be appropriate to impose such a restriction on Mr Ponting’s use of the computer during the day. They might include considerations of security, problems of supervision or the allocation of resources. I entirely agree with Arden LJ that it is not for the courts to define how the time of prisoners should be spent or the priorities for allocation of prison resources. I also agree with her that the court has no relevant experience in prison service or discipline and that it is a matter for the prison authorities to decide what supervision is required in each case.
- The problem which I have is that already stated, namely that the evidence does not indicate what considerations led the Governor of HMP Frankland to introduce condition 2. For example, there is no evidence of the risk, if any, posed by allowing Mr Ponting to use the computer in his cell during the day when he was not working and there is no evidence which suggests that the Governor took the view that the resources available to him would make it difficult or impracticable to supervise Mr Ponting's use of the computer in his cell during the day while it was unlocked or whether or not it would be practicable, for example, to allow Mr Ponting to be locked in his cell during the day or part of the day.
- In short, as I see it, the problem with the evidence is that condition 2 imposes a blanket ban without any explanation as to the considerations taken into account by the Governor in arriving at his decision. We do not know the reasons for his decision. In these circumstances, I would hold that the blanket restriction in condition 2 is not proportionate or justifiable. Condition 3 stands or falls with condition 2, since condition 3 is not in any way objectionable on its own.
- I should add that it does not seem to me to follow that it would be appropriate to grant Mr Ponting any relief because I recognise that because of the history of the application for judicial review the respondents’ evidence was focusing on a somewhat different case and, more importantly, although we were told that the prison where Mr. Ponting is at present operates an identical scheme, the evidence does not identify the reasons for that scheme.
- I agree with Schiemann LJ. The condition is, in any event, plainly unobjectionable once it is appreciated that it relates only to discs in possession.
- I agree with Schiemann LJ that this condition is unobjectionable. The authorities are entitled to examine correspondence to ensure that it is bona fide legal correspondence protected by legal professional privilege. It seems to me that they must be entitled to examine the contents of a disc in order to ensure that its contents are protected by legal professional privilege and that it is not being used for, for example, unlawful purposes.
- I am not sure that I understand the purpose of the distinction between correspondence to legal advisers and background information unless it is intended to distinguish between privileged and other material, but I do not disagree with Schiemann LJ's approach to this condition.
- The problem with this condition is that we have not seen HMP Frankland’s policy on searching hard copy legal papers. However, such a condition would plainly be acceptable provided that the policy avoids the problem identified in Daly. There is no evidence or suggestion that the present policy does not.
- I can see no objection to this condition.
- This condition does not, to my mind engage Mr Ponting’s Convention rights. In any event I would accept the submission that it is reasonable to require prisoners to acquire discs from within the prison in order to ensure that there is no opportunity to introduce doctored or unlawful material into the prison on a disc.
- I am conscious that this judgment is too long, especially when the differences between the views which I have expressed and those of Schiemann and Arden LJJ are very narrow indeed. The only condition which to my mind is unlawful on the evidence available to us is condition 2 in its blanket form. It does not, however, follow that it would be appropriate to grant Mr Ponting any relief for the reasons given in paragraph 94 above..
Lady Justice Arden :
- I am indebted to both Schiemann LJ and Clarke LJ for the detailed citation from the authorities set out in their judgments. I also gratefully adopt the summary of the facts in this case and the submissions of counsel set out in the judgment of Schiemann LJ. I will not set out again in this judgment the compact into which Mr Ponting is required to enter as a condition of having access to a word processor in prison since the relevant parts appear in both judgments already given. References below to "the italicised wording" are to the italicised wording appearing in the extract from the compact in the judgment of Schiemann LJ.
- This appeal has been argued on the basis that various requirements of the compact (specifically the italicised wording and conditions 2, 9, 11, 12, 14, 17 and 18) violate Mr Ponting's right of access to court under article 6 of the European Convention on Human Rights or his right under article 8 of the Convention to respect for his private right and correspondence.
- So far as article 6 is concerned, it is well-established in the Strasbourg jurisprudence that a person has a right of access to court under article 6 and that article 6 is engaged by the imposition of limitations on the exercise of that right. But the right is not absolute (Golder v UK  1 EHRR 524). As the European Court of Human Rights said in Ashingdane v UK  7 EHRR 528 (where, however, it was assumed that the subject matter of the proposed proceedings in that case was “a civil right” for the purposes of article 6):
“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).”
- Limitations imposed on the exercise of the right of access to court do not lead to a violation of article 6 if (1) the limitations serve a legitimate aim; (2) they are in accordance with the law, and (3) there is a reasonable relationship of proportionality between the legitimate aim and the means used to attain that aim. On the other hand limitations will result in a violation if they impair the very essence of the right: see (Ashingdane v UK, above).
- In this case Mr Ponting has dyslexia; we do not know how serious it is but we are in effect asked to assume that it is such that Mr Ponting could show that the lack of word-processing facilities significantly impedes his ability to communicate with the court and produce the required documents, the respondent reserving for argument in a future case whether a right of access to a computer can ever be part of the right of access to court. I have been prepared to proceed on the basis that in the present case article 6 is engaged. Mr Ponting bought a computer which he wished to use in prison to assist him in this regard. The prison authorities have denied him the use of that computer. There were a number of reasons for this connected with the maintenance of good order in the prison and other matters and those reasons are not now challenged. On the assumptions that I have made as to the scale of his disability , the prison authorities have thus impeded his right of access to court. But they have now offered him the use of another computer on the terms of the compact. So the question which now arises is whether the provisions of that compact enumerated above violate his right of access to court. It is thus unnecessary to express any view as to whether the state owes a positive duty in this case to provide a computer to Mr Ponting to enable him effectively to exercise his right of access to court.
- There is no issue as to legitimate aim or legality. The prison service consider that the terms of the PSI are justified on the grounds that they are necessary to keep good order and control in prisons and reduce the risk of computers being used in further criminal activity by inmates. Access to computers is given on a case by case basis. To reduce the risk of unauthorised access or access for unauthorised purposes particularly access to the internet by use of mobile phones secreted into the prison, access is only permitted when a prisoner is locked in his cell (or in “lock up”). If inmates had uncontrolled access to a word processor they could also create documents to be used in criminal activities. Nor is there any issue as to the legal basis under which the prison authorities were entitled to impose the compact. The real issue on this appeal is proportionality. In this case, proportionality has to be judged not simply at the level whether the compact is in general a proportionate means of meeting the legitimate aim it seeks to serve but at the level whether the compact is proportionate in Mr Ponting's case.
- The decision of Newman J was given before the decision of the House of Lords in R v Secretary of State ex parte Daly  2 WLR 1622. Since that decision, it has been recognised that cases involving violations of Convention rights require a more intense level of scrutiny than the traditional Wednesbury test and indeed Mr Ross-Munro has not relied on the latter test in his submissions. Lord Steyn explained in his speech the qualitative difference between the Wednesbury test and that required in cases involving Convention rights. The relevant passages have already been set out in the judgment of Clarke LJ and I need not repeat them. I would particularly emphasise that Lord Steyn importantly concludes that there has not been a shift to a merits review. His final conclusion is that the intensity of review in public law depends on the subject matter in hand, citing with approval Laws LJ in R(Mahmoud) v Secretary of State for the Home Department  1 WLR 840. In Lord Steyn's words, "In law context is everything."
- Lord Bingham's primary approach was based on "an orthodox application of common law principles derived from the authorities and on an orthodox domestic approach to judicial review" but as Schiemann LJ has explained he found that the common law and the Convention yielded the same result. But he added that in cases involving violations of Convention rights the traditional threshold for review may be too high and that:
“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.”
- In Samaroo and Sezek v Secretary of State for the Home Department  EWCA Civ 1139,  UKHRR 1150, this court considered the decision in Daly. Dyson LJ, with whom Dame Elizabeth Butler-Sloss P and Thorpe LJ agreed accepted the submission of counsel (Mr Howell QC) that usually proportionality requires a two stage enquiry: first, whether there are other methods of achieving the legitimate aim which are less intrusive of a person's Convention rights, and second, whether any intrusion strikes a fair balance between the interests of the state and the rights of the individual. This analysis imposes a principled and disciplined approach although Dyson LJ wisely recognises that it will not necessarily apply in every case. The burden of showing that these two hurdles are overcome lies on the Secretary of State. Moreover, echoing what was said by Lord Steyn, the decision as to how to strike the balance is one for the decision -maker and the role of the court is supervisory. Dyson LJ amplified the role of the court in the passages which Schiemann LJ has already set out. In particular the court may in Convention cases, subject to the margin of discretion to be accorded to the decision-maker, review the weight given by the decision-maker to the relevant factors.
- In the present case the most controversial question has been whether condition 2 violates Mr Ponting's Convention right under article 6. The effect is that Mr Ponting can have his computer between 7.30 p.m. and 8 a.m. on weekdays and at weekends from 4.30 p.m. to 8.15 a.m. Mr. Ponting is not in lock up for substantial periods of time except in these periods. As respects this condition I confess that I have found it difficult, on the limited evidence in this case and indeed in the light of the nature of the Convention right relied on, to apply Dyson LJ's first stage of enquiry. It is not at all clear on the evidence in this case to what extent the restriction of access to a computer to evening in-cell use will have any material effect on Mr Ponting's ability to conduct his litigation, even making allowance for his dyslexia. While the preparation of statements of case and witness statements may, depending on the nature of the litigation , require long periods of detailed preparation there will be other stages in the litigation when comparative little needs to be done. It cannot in my judgment be said that article 6 imposes some positive obligation on the state to provide access to a word processor at times which Mr Ponting would happen to prefer, but only when it is reasonably required. The choice of when to have access is not his. It follows that, in my judgment, the extent of interference with Mr Ponting's rights under this article are not capable of clear-cut assessment as the first stage of the enquiry proposed by Dyson LJ would require. I therefore move to the second stage as respects condition 2.
- It will be recalled that at this stage of the enquiry the function of the court is to review the balancing exercise carried out by the decision-maker and that appropriate deference is to be given to the decision-maker. While the domestic court does not apply a “margin of appreciation” in the way that the European Court of Human Rights does, there is a margin of discretion which must be accorded to the state and organs of the state (see R v D.P.P. ex parte Kebilene  2 AC 326 at 380-381 per Lord Hope of Craighead). The judgmental issue is then the level of deference to be paid to the decision-maker. Here I turn to the factors which Dyson LJ specifically mentions in paragraph 35 of his judgment (which Schiemann LJ has set out). First, the right under article 6 is not absolute: see the observations made above. Second, the restrictions imposed by condition 2 affect the allocation of resources by the prison authorities: for instance, there might need to be a member of staff supervising Mr Ponting if day-time use is permitted and Mr. Ponting is in lock up. Third, the court has no relevant expertise in prison security or discipline. The court's relevant expertise is of course knowledge of what the law requires. The prison authorities are well-placed to judge what is required for the maintenance of good order in a prison. I note that Mr Ponting is a Category B prisoner in a medium or high security prison. Fourth, constitutional protection is to be accorded to the right of access to court, but, as I have explained above the right is not absolute and is by its nature subject - for any citizen - to regulation by the state, which may take into account the needs and resources of the state as well as those of the individual (see Golder v UK and Ashingdane v UK, above). Furthermore it must be borne in mind that the right of access to court is not actually prevented by condition 2. Mr Ponting can prepare documents or drafts in handwriting. There is nothing in the procedural rules or the practice of the courts which prevents this.
- I now turn to the grounds put forward as specifically justifying condition 2 and they are that Mr Ponting is required under prison rules to be available for work during the day in the week and would not be in lock up at times other than those referred to in condition 2. Mr Ponting's case is (1) that this puts him at a disadvantage since he has to work at night and there is limited time for doing this, and (2) that he is in any event unemployed at the present time. However, Mr Ponting gives no estimate of the time he requires with his computer. His case is really one of principle: three hours per day is unfair and unreasonable and, if he is permitted access during lock up, why should he not have access during other periods of lock up, namely 12 noon to 2 p.m. and 4 p.m. to 5.15.p.m. as well? (There seems to be some issue about the hours of lock up during the day but I have proceeded on the basis that if there are any such hours they are no greater than those mentioned in the last sentence).
- The issue for decision is whether, when allowance is made of the margin of discretion to be accorded to the prison authorities and account is taken of the fact that a reasonable balance has to be struck between the interests of the appellant and those of the respondent, the court should conclude that the respondent has in condition 2 given insufficient weight to Mr Ponting's Convention right or excessive weight to the factors relating to the running of the prison. For my own part I do not consider that the court can so conclude. As Mr Rabinder Singh, for the respondent, submits, the question whether condition 2 satisfies the second stage of the Samaroo enquiry is not a "hard-edged " legal question but one of judgment. Normally, in questions related to the right of access to court, although the question is one of judgment, the court can apply a more intense level of scrutiny because the matter falls within the field of its expertise. But this is an unusual case because, while the case concerns the right of access of court, it is not wholly within the court’s expertise in this instance whether the right has been violated or whether any violation is justified: expertise in running prisons is also involved. Moreover, as the court’s role is supervisory, it is not for the courts to define how the time of prisoners should be spent or the priorities for allocation of prison resources.
- That is not to say that the court has no relevant expertise. It has of course expertise in what needs to be done when conducting litigation in the courts. This case requires some general assessment of what a litigant might reasonably require and thus it is relevant to consider how much time Mr Ponting will have with his word processor under condition 2 and whether that time ought to meet his reasonable needs. It would seem to me (in the absence of evidence as to any specific requirements of his litigation) that the time that Mr Ponting is to be allowed for using his computer ought to be adequate even for four sets of proceedings. I estimate that on the basis that he would not work beyond 10.30 p.m. condition 2 would give him more than 25 hours a week working time in front of his word processor, i.e. in excess of 6 hours on each case. He can spend further hours working on his cases without his computer if he wishes. In those circumstances I do not consider that he is materially prejudiced by having to use his computer in the evening instead of some other time of day. In the context of this case, given the importance of the other factors to be borne in mind in striking the balance, the respondent is in my judgment entitled to limit access to those times when in accordance with prison routine access to IT can be given in way which runs least risk of compromising resources and security. For my own part I do not consider that the balance the respondent has struck in condition 2 is reviewable by the court. It is not I think for the courts to require the prison authorities to arrange for Mr Ponting to have maximum access to a computer. This would in my view be beyond either what the Convention requires or what the scope of judicial review in these circumstances admits.
- This conclusion may disappoint Mr Ponting but he should recall that the prison authorities have come a long way to meet any suggestion that his Convention right of access to court might be infringed.
- Having dealt at some length with condition 2, on which I respectfully differ from Clarke LJ, I can deal with the remaining issues briefly. The article primarily engaged by the other parts of the compact under challenge is article 8. I take those parts in turn.
- The italicised wording does not in my judgment violate article 8. The disclosure is of “ongoing” proceedings, which as I see means those already issued. That information is public information. It may not have been known to the prison authorities and in that sense be confidential but, as it is necessary for them to have this information in order to monitor compliance with the compact and it is already public information, I consider that any violation is within article 8(2). It would be somewhat extraordinary if the respondent having accepted some obligation to provide a computer for the purpose of facilitating access to court were then deprived of some means of ensuring that the computer was used for that purpose. The respondent eschews any requirement for the supply of privileged information.
- I agree with what Schiemann and Clarke LJ have said about conditions 9 and 12. In addition, given that condition 9 is imposed for operational reasons and that condition 12 is imposed to facilitate respect for legal professional privilege if search is required, I do not consider that these conditions could be successfully challenged under traditional Wednesbury grounds.
- As to condition 11, I agree with Schiemann LJ for the reasons he gives that the requirement that the disks should not be encrypted, passworded or hidden from view is within article 8(2). The remainder of condition 11 does not engage article 8.
- As to condition 14, properly interpreted this must be limited to “lawful” policies on searching legal papers. Lawful policies have to be Convention-rights compliant (see section 6 of the Human Rights Act 1998). Accordingly, I do not consider that this condition violates article 8. I am not concerned about the extension to future policies. It would obviously be highly inconvenient for the prison authorities to have to seek individual prisoner’s consent to each variation in policies. If policies have to be lawful, that includes compliance with article 8, and Mr Ponting is adequately protected. Accordingly I respectfully disagree with Clarke LJ on this condition.
- As to condition 17, this is clearly a sensible condition to ensure that the computer is not used improperly and accordingly article 8(2) applies. This conclusion is in accord with that of Schiemann and Clarke LJJ on this point.
- It is unnecessary to deal with condition 3 because of Mr Ponting's challenge to it stood or fell by his challenge to article 2.
- Mr Singh also explained that condition 18 was required for security reasons. There is no evidence that this condition significantly impairs the exercise by Mr Ponting of his right of access to court and accordingly this condition does not in my judgment violate any Convention right and could not be said in the circumstances to fail the Wednesbury test.
- For the above reasons I would dismiss this appeal.
Order: Appeal dismissed.
(Order does not form part of approved judgment)
Note 1 99p [Back]
Note 2 100 [Back]
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