Szuluk, R (on the application of) v HMP Full Sutton & Anor

Under Article 8 and the Human Rights Act 1998, the legality of restrictions on a prisoner’s external correspondence is a question for the court, including proportionality. It is not resolved by an unstructured executive discretion. Prison authorities may evaluate security risks, but the court must decide whether the demonstrated need justifies interference with the fundamental right. Prison policies must be applied flexibly to individual Convention circumstances. Confidential correspondence with an outside treating doctor may be permitted where security allows, but the law does not require a waiver. Reading such correspondence by a prison medical officer was proportionate where it pursued pressing security objectives, used the least invasive available scrutiny, was not arbitrary and preserved the essence of Article 8.

The claimant, a high-security prisoner serving a 14-year sentence, had suffered a brain haemorrhage and required continuing treatment by an outside neuroradiologist. He sought confidential correspondence with that doctor. The prison governor initially agreed, but headquarters directed that the correspondence should instead be opened and checked for authenticity by the prison medical officer under the Prison Rules 1999 and Prison Service policy.

On 20 February 2004, Collins J held that the restriction was disproportionate and unlawful, and quashed the decision. The Governor and the Secretary of State appealed. The central issue was whether reading the claimant’s medical correspondence by the prison medical officer was a proportionate interference with his Article 8 rights.

The court, in a judgment delivered by Sedley LJ, allowed the appeal.

1. Legal framework. The Prison Act 1952 authorised the Secretary of State to make the Prison Rules 1999, which had the force of law. Prison Service Standing Order 1000, chapter 36, was policy rather than law. It therefore required sufficient flexibility to accommodate individual Convention rights. Under section 6 of the Human Rights Act 1998, the question whether the restriction was lawful was one of law for the court.
2. Executive assessment and judicial review. The court would ordinarily accept the Prison Service’s evaluation of the risk of serious abuse of outside mail because of its superior practical knowledge. It nevertheless had to decide whether a sufficiently pressing need justified interference with a fundamental right. Declining to adjudicate the established facts would be abdication, not deference. The discussion in International Transport Roth Gmbh v Secretary of State for the Home Department [2003] QB 728, R (Pro-Life Alliance) v BBC [2004] 1 AC 185 and M v Home Office [1992] QB 270 provided the relevant constitutional context.
3. Proportionality. Reading the correspondence pursued legitimate and pressing security objectives. No less invasive measure was available short of withdrawing scrutiny altogether. Reading by a medically qualified prison officer was not excessive. The decision-making process was not arbitrary or the result of rigid policy, and the interference did not deny the essence of Article 8 rights. Although medical advice was confidential and disclosure could inhibit candid communication, the residual risk of abuse was outweighed by the security considerations and the safeguards applied.
4. The case differed from R (Daly) v Home Secretary [2001] 2 AC 532, where scrutiny was permissible but the manner of scrutiny was disproportionate. The governor retained a discretion to allow confidential medical correspondence where security could be protected, but was not legally obliged to do so. The appellants established that the interference was justified under Article 8(2). The appeal was accordingly allowed.

• Court of Appeal (Civil Division): Appeal allowed. The court held that reading the claimant’s medical correspondence by the prison medical officer was a proportionate interference with Article 8 rights: [2004] EWCA Civ 1426.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Collins J held on 20 February 2004 that the restrictions were disproportionate and unlawful, and quashed the decision.