Mackenzie, R (on the application of) v HM Prison Wakefield Governor

Routine night-time security checks of category A prisoners do not breach Article 3 merely because they disturb sleep or cause inconvenience. Prison security procedures may engage Article 8, but a lawful, necessary and proportionate policy will not breach it when applied to minimise avoidable noise and light. A generally applicable policy need not be abandoned, although exceptional individual cases may require reasonable flexibility where there is strong evidence of undue harm and minimal escape risk.

The claimant, a category A prisoner, sought judicial review of regular night-time inspections involving the opening of his cell hatch, noise and lighting. Relying on his physical and psychiatric conditions, he argued that the inspections breached Articles 3 and 8 of the European Convention on Human Rights. The Prison Service had reduced the frequency of inspections and issued instructions to minimise disturbance. The central issues were whether the treatment reached the Article 3 threshold and whether the policy, as applied, constituted an unjustified interference with private life.

1. Article 3. The policy and its effects fell well below the threshold for torture or inhuman or degrading treatment. The checks were not intended to humiliate or injure. Ordinary inconvenience and occasional disturbance of sleep, even with a greater effect on a medically vulnerable prisoner, were insufficient. The circumstances were materially less serious than those considered in Yankov v Bulgaria [2005] 40 EHRR 36.
2. Article 8. Prison conditions and procedures can engage private life. The inspection policy was authorised by the Prison Rules and the Prison Act and was generally necessary for public safety and the prevention of crime. On the evidence, it could be applied without necessarily disturbing the claimant’s sleep, by minimising noise and using only necessary low-level lighting. The claimant accepted that inspections were not invariably disturbing.
3. The policy was lawful, necessary and proportionate under Article 8.2. The claim did not establish an interference with private life sufficient to engage Article 8.1, and in any event the policy was justified.
4. The court rejected the proposition that the policy was wholly inflexible. In a rare case, where there is good evidence of undue suffering and of the prisoner presenting no real escape risk, the Prison Service may need to consider whether the policy can reasonably be amended. That observation did not assist this claimant.
5. The claim was dismissed. The claimant was granted detailed assessment of costs.