Cooper v Secretary of State for the Home Department

Prisoners retain a fundamental right of meaningful access to the courts, subject only to restrictions imposed by lawful imprisonment. That right requires more than a formal ability to request individual authorities: a serviceable minimum of legal materials must enable genuine legal research. The minimum may include access to current procedural rules, recent case law and other materials bearing directly on the prisoner’s legal interests. Article 6 does not require a prison library equivalent to that available to a practising lawyer. Whether facilities are adequate is fact-sensitive and may change as technology develops. A released prisoner may pursue an otherwise academic appeal where a question of principle warrants consideration, but permission may properly be refused where the proposed appeal would serve only the interests of others and the evidence does not yet establish a demonstrable, unexcused breach.

The appellant sought permission to appeal from two decisions of Mitchell J dated 1 February 2002. Permission had been refused on a judicial review challenge concerning the prohibition on removing his T-shirt in the exercise yard. A separate judicial review claim, for which Turner J had granted permission, challenged the absence of electronic access to legal materials needed to pursue litigation.

By the hearing, the appellant had been released from prison. The Court therefore considered both the arguable strength of the access-to-courts claim and whether the issue had become academic, including the wider public interest in allowing an appeal for the benefit of other prisoners.

1. Disposition. The application for permission to appeal was dismissed. The T-shirt complaint involved prison organisation and discipline rather than a legal right and disclosed no arguable basis for judicial review.
2. Access to the courts is a fundamental right recognised by common law and the European Convention on Human Rights. Imprisonment restricts that right only to the extent unavoidably required by a lawful sentence. Paragraph 7 of Standing Order 16 accordingly required necessary facilities for a prisoner who wished to initiate or conduct proceedings personally without professional advice.
3. Meaningful access requires a serviceable minimum of legal information. A system that merely supplies cases identified by the prisoner may be inadequate, because legal research ordinarily begins by discovering which authorities are relevant. Current Civil Procedure Rules and recent case law were capable of being of fundamental importance. Materials outside law, such as scientific articles, could also be required where they bore on the prisoner’s direct legal interests.
4. Article 6 did not require a prison to provide a library equivalent to that available to a practising lawyer. The adequacy of provision was a shifting question, particularly as controlled internet-access technology developed. The evidence did not yet establish a breach that was demonstrably remediable and therefore not excusable.
5. Release did not itself prevent pursuit of an otherwise academic appeal where the court was asked to consider a question of principle. Permission could nevertheless be refused where the appellant had no personal stake, the appeal would serve only the interests of others, and the evidence did not justify allowing it to proceed. The court urged the Home Office to address prisoners’ need for broad legal research materials and to consider safe technological means of access.

• Court of Appeal (Civil Division): On 12 February 2003, the court dismissed the application for permission to appeal.
• High Court Administrative Court: Mitchell J refused permission for judicial review of the T-shirt restriction and dismissed the claim concerning access to legal materials. Turner J had earlier granted permission for the latter claim to proceed.