RD, R (on the application of) v Secretary of State for the Home Department

Prisoners’ telephone charging arrangements may fall within the general category of decisions capable of engaging Article 8, but telephone access is not itself guaranteed by Article 8 where adequate correspondence is available. An interference with family life must also attain sufficient seriousness before entering the Article 8.1 ambit. Article 8.2 justification arises only after an Article 8.1 infringement. Article 14 requires both an issue within the ambit of another Convention right and an analogous or relevantly similar comparator. Prisoners using prison telephones are not in that position vis-à-vis free members of the public. The claims therefore failed at the threshold.

Mr Davison, a serving prisoner, challenged the tariff for United Kingdom landline calls from prison telephones, comparing it with public call-box charges. The prison ombudsman upheld his complaint and recommended renegotiation of the tariff, but the prison service rejected that recommendation.

Judicial review proceedings alleged breaches of Articles 8 and 14 and sought a mandatory order or compensation. Sullivan J doubted whether Article 8 was engaged and considered the regime rationally justifiable. Mitting J held that no arguable Article 8 interference arose, taking account of other means of communication. Mr Davison renewed his application before the Court of Appeal, raising whether the charging regime engaged or violated Articles 8 and 14.

Lord Justice Buxton gave the judgment of the court. Lord Justices Laws and Dyson agreed.

1. Article 8. Rules concerning communication between prisoners and their families are capable in principle of engaging Article 8. However, Klamecki v Poland (No 2) [2004] 39 EHRR 7 concerned restrictions on visits and exceptionally severe restrictions on contact. It did not support a general rule that every limitation on prisoner contact required Article 8.2 justification. McCotter v United Kingdom [1992] 20479/92 confirmed the importance of family contact for prisoners, but also showed that only exceptional circumstances would make detention away from home an Article 8 infringement. More directly, AB v the Netherlands [2003] 37 EHRR 48 established that Article 8 does not guarantee prisoners telephone calls where adequate correspondence is available.
2. The court’s duty is to keep pace with, but not go beyond, Strasbourg jurisprudence, as stated in R (Ullah) v the Special Adjudicator [2004] 2 AC 323. The House of Lords’ guidance in M v The Secretary of State for Work and Pensions [2006] 2 AC 91 required an interference which does not destroy the substance of family life to possess sufficient seriousness before entering the Article 8.1 ambit. The concession that the charging arrangements did not violate Article 8 was correct.
3. Justification under Article 8.2 arises only after an infringement of Article 8.1. If the objective situation does not infringe Article 8.1, the respondent has no obligation to justify it. SSHD ex parte Daly [2001] 2 AC 532 did not assist the appellant because the House of Lords had proceeded on the assumption that an Article 8 breach existed.
4. Article 14. The ambit of Article 14 requires a limited, value-based assessment informed particularly by Strasbourg authority. The telephone issue fell outside the relevant Article 8 ambit. In any event, prisoners were not in an analogous or relevantly similar position to free members of the public using public telephone boxes. Shelley v United Kingdom App no. 23800/06 concerned healthcare, where prison rules contemplated equivalence with community healthcare, and was materially distinguishable.
5. Neither claim reached the stage of considering justification. The court did not decide that the prison service could provide no justification. The appeal was dismissed. Permission had been granted at the hearing only to manage the hearing economically.

• Court of Appeal (Civil Division): Permission was granted at the hearing, but the appeal was dismissed unanimously.
• Queen’s Bench Division: Mitting J held that the claim was unarguable because the telephone arrangements imposed no sufficiently serious restriction on Article 8 rights, having regard to other means of communication.