A, R (On the Application Of) v Home Secretary

Monitoring conditions imposed on interviews between detained persons and journalists may constitute an interference with Article 10, but may be justified under Article 10(2). For detainees reasonably suspected of terrorism and detained in category A conditions, monitoring within earshot of officials and tape-recording may be necessary and proportionate to protect prison order, discipline and national security. The court should give careful regard to the detainees’ Convention rights, while recognising the executive’s constitutional responsibility for national-security judgments. Where no lesser and equally effective safeguards are available, the court should not interfere with the balance struck by the Secretary of State. The same approach may apply to a detained patient in a high-security hospital, subject to therapeutic considerations.

Six persons detained under the Anti-Terrorism, Crime and Security Act 2001 and the Immigration Act 1971 sought judicial review of conditions imposed on interviews with journalists. The interviews were permitted, but only if conducted within earshot of officials, tape-recorded, and kept within an agreed scope. The claimants argued that these conditions inhibited their freedom of expression under Article 10. The Secretary of State relied on prison order, discipline and national security. One claimant was detained at Broadmoor Hospital, where the West London Mental Health NHS Trust was also concerned. The central issue was whether the conditions were a necessary and proportionate interference under Article 10(2).

1. Application dismissed. The conditions imposed by the Secretary of State fell within Article 10(2) and were lawful.
2. The court accepted that monitoring interfered with the claimants’ Article 10(1) rights. Their status as immigration detainees rather than convicted prisoners required careful consideration of their Convention rights. It did not, however, remove the legitimate need for security controls.
3. The claimants were detained in category A accommodation because they were justifiably suspected of terrorism and considered a threat to national security. Monitoring within earshot was ordinarily justified by the need to maintain good order and discipline. The additional national-security concern justified tape-recording.
4. The court applied the proportionality approach discussed in R v Home Secretary ex parte Simms [2000] 2 AC 115 and R (Hirst) v Home Secretary [2002] 1 WLR (Part 2) 2929. The relevant question was whether the proposed safeguards were necessary to achieve the legitimate aims. No lesser and equally effective measures had been identified.
5. The court relied on the national-security principles discussed in Home Secretary v Rehman [2003] 1 AC 153. Questions involving the interests of national security involve executive judgment and policy, although the legal limits of executive power remain for the courts. The balance struck in the Secretary of State’s letter of 20 June 2003 was one with which the court should not interfere.
6. In relation to the Broadmoor claimant, the Trust could impose equivalent conditions, subject to therapeutic considerations. The application was dismissed with no order as to costs, save for detailed assessment of the claimants’ legally aided costs. Leave to appeal was refused.

Permission to apply for judicial review was granted by Mackay J on 5 February 2003. The Secretary of State then reconsidered the position and permitted the interviews subject to the challenged conditions. The Divisional Court dismissed the application and refused leave to appeal.