Taylor, R (on the application of) v HM Prison Risley

A prison-wide call-enabling regime may lawfully restrict prisoners’ telephone communications where it pursues legitimate aims such as preventing crime, maintaining prison security and protecting the public. The court must apply intensive proportionality review under Article 8. A rational connection with the aim is insufficient: the restriction must also be no more than necessary and proportionate in the circumstances of the particular prison at the particular time. Evidence of operational conditions may justify a blanket regime where a mixed system would be vulnerable to abuse. The decision is fact-sensitive and cannot serve as general authority for imposing similar regimes elsewhere or indefinitely.

The claimant, a serving life prisoner at HMP Risley, sought judicial review of the Governor’s decision to place nearly the whole prison on a call-enabling system. Prisoners could call only approved numbers using a PIN, subject to limits and a charge for frequent changes to domestic numbers.

He contended that the blanket regime interfered disproportionately with Article 8 rights and departed from the circumstances contemplated by a draft Prison Service Order. The Governor relied on serious drug problems, crime prevention, prison security, good order and public protection. The central issue was whether the regime was a proportionate restriction of prisoners’ private and family communications.

1. The application was refused. The claim was a fact-sensitive challenge to the proportionality of the Governor’s decision.
2. The court applied the more intensive proportionality review described in R (Daly) v Secretary of State [2001] UKHL 26. The court had to examine the importance of the objective, the rational connection between the measure and that objective, and whether the interference went further than necessary. Operational experience did not remove the court’s duty to scrutinise proportionality.
3. The objectives were legitimate: restricting communications likely to facilitate drug dealing, crime outside prison, prison disorder and risks to the public. Call enabling was rationally connected with those objectives.
4. On the evidence concerning Risley at the relevant time, the serious drug problem justified call enabling. The fact that drug use appeared to have increased after its introduction did not establish that the system caused the increase. The Governor also reasonably concluded that a mixed enabling and barring system could be defeated if prisoners obtained or shared PINs.
5. The restrictions remained proportionate despite disruption to family contact. The claimant had substantial access to domestic and legal numbers, and prisoners could not expect communications on the same level as persons at liberty. The 20p charge for changing domestic numbers within 14 days was reasonably directed to preventing abusive applications.
6. The decision was not permanent or transferable. The Governor had to reconsider it as circumstances changed and justify any future decision under the Prison Rules, any applicable Prison Service Order and the Convention. Other governors could not rely on the judgment as carte blanche for blanket regimes in different prisons.

First-instance judicial review in the Administrative Court. Permission had been granted by Forbes J on 2 February 2004. The application was heard and refused by McCombe J.