Francis v Home Office (& Ors)

Prison correspondence rules may lawfully permit the opening, reading or stopping of a prisoner’s correspondence in defined circumstances. An accidental breach of protections for legal or confidential correspondence does not automatically establish entitlement to relief under the Human Rights Act 1998. Victim status depends on all the circumstances, including the number and nature of incidents, whether correspondence was read, whether the conduct was deliberate, and whether apologies, assurances and corrective steps followed. Damages or other relief are granted only where necessary to afford just satisfaction. A claim for misfeasance in public office requires bad faith and material damage. Distress and injured feelings alone do not constitute the necessary damage.

The claimant, a serving prisoner, claimed that confidential correspondence and legal correspondence had been opened and that letters to a county court and other persons had been stopped at HMP Belmarsh. He alleged breaches of Prison Rule 39, Articles 8 and 10 of the Convention, and misfeasance in public office.

The defendants accepted that some letters had been opened in error but denied bad faith and disputed the claimant’s entitlement to relief. The court determined which letters had been wrongfully opened or stopped, whether the claimant was a victim for the purposes of section 7 of the Human Rights Act 1998, whether relief was necessary, and whether the tort of misfeasance was established.

1. The claim was dismissed. Only two letters from the claimant’s constituency Member of Parliament and one solicitor’s letter were proved to have been opened contrary to the applicable confidential-access or Rule 39 procedures. The letters were not deliberately opened or read. Apologies, explanations, assurances and corrective steps followed.
2. Prison Rule 39 protected correspondence with legal advisers and courts, subject to the rule’s express exceptions. The confidential-access arrangements also protected specified correspondence, including correspondence with a constituency Member of Parliament. The relevant prison procedures were justified and proportionate under Articles 8 and 10.
3. Under section 7 of the Human Rights Act 1998 and Article 34 of the Convention, the claimant was not a victim when proceedings began. Victim status is fact-sensitive. Relevant considerations include the number of breaches, whether correspondence was deliberately opened or read, the absence or presence of apologies and assurances, corrective action, targeting, and any resulting damage.
4. Even if victim status had been established, the court would have refused declaratory relief and compensation. Section 8 of the Human Rights Act 1998 requires damages by way of just satisfaction to be necessary. The public judgment, apologies and corrective measures were sufficient in the circumstances.
5. The stopping of the recorded-delivery letters to the county court was justified by the prison’s cash-disbursement procedure, and the other correspondence was properly subject to security and governor-approval requirements. No breach of Articles 8 or 10 was established.
6. The misfeasance claim failed because there was no bad faith and no material damage. Following Watkins v The Home Office [2006] UK HL17, material damage is essential; financial loss or psychiatric or physical injury may qualify, but distress or injured feelings do not.
7. Prisons should maintain complete correspondence and opened-in-error logs, and solicitors should follow the agreed marking and double-envelope procedures precisely.