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

Prisoners retain Convention rights, including respect for family life, but those rights may be restricted where necessary to protect others. A prison must balance the risks posed by a prisoner against his Article 8 rights and give adequate reasons for the restriction. A prisoner challenging the withholding of personal photographs must ordinarily exhaust the prison’s procedures for seeking their return. The prison has a wide discretion to withhold photographs where the prisoner is subject to child-protection restrictions, but the welfare and best interests of any child remain central. A later refusal to return a photograph of a person who is no longer a child may be reviewable if no reasoned safeguarding basis is given. Judicial review of the original decisions was refused because the claims lacked merit and were out of time.

The claimant was serving a life sentence for the rape and murder of his seven-year-old niece. After his transfer to HM Prison Wakefield, he was placed on Level 1 of the prison’s Safeguarding Children procedures, preventing direct or indirect contact with children. His personal photographs were also removed.

He sought judicial review, declarations and mandatory or quashing orders concerning both decisions. The issues were whether the Level 1 classification and removal of the photographs unlawfully interfered with his Article 8 rights, whether the prison’s internal procedures had to be exhausted, and whether the claims were brought in time.

1. Level 1 classification. Permission to seek judicial review was refused. The prison had given adequate reasons for applying the Safeguarding Children policy, having regard to the index offence, the claimant’s history and the policy’s purpose of preventing the grooming of children before a prisoner’s release. The relevant decision was complete by early January 2009, so the claim issued on 6 May 2009 was outside the three-month period. No extension of time was justified.
2. Article 8 framework. Applying the approach in Hirst v The United Kingdom (No 2) (2005) ECHR Grand Chamber, imprisonment does not forfeit Convention rights. Those rights may nevertheless be restricted to protect society. The prison authority had to balance the risk against the claimant’s Article 8 rights.
3. Photographs. The original removal decision was not shown to be unlawful. A prisoner subject to Level 1 restrictions following an offence involving a child could be subject to a wide discretionary assessment of whether withholding each photograph served the interests of the child depicted. The claimant first had to exhaust the prison’s procedures for seeking return of the photographs. The Prison and Probation Ombudsman procedure was not a remedy which had to be exhausted.
4. The original removal decision, made in November 2008, was also out of time. A later final refusal to return a photograph could potentially be challenged, particularly where the person depicted was an adult and no safeguarding reason for continued withholding was given. That observation was not the basis of the present decision. Permission to seek judicial review of the photograph decision was refused.