Broom v Secretary of State for Justice

A restriction on a prisoner’s possession of historical photographs of family members engages Article 8 only if its consequences are sufficiently grave. Where Article 8 is engaged, the court must assess whether the interference is proportionate to a legitimate public aim. In assessing proportionality, a high assessed risk of harm to children and the possibility that photographs may be shared within a prison can justify a limited restriction, even without evidence of a specific intended misuse. A traditional judicial review challenge fails where the decision-maker has considered the relevant matters identified in its governing guidance.

The claimant, a serving prisoner, sought judicial review of the Safeguarding Children Panel’s refusal to return 24 historical photographs of family members who had been children when the photographs were taken. He alleged breach of Article 8 and, alternatively, procedural and substantive unlawfulness in the panel’s application of the Public Protection Manual.

An earlier judicial review was stayed to permit a fresh decision. The fresh decision was made on 10 February 2010, and oral permission was later granted by HHJ Kay. The central issues were whether the restriction engaged Article 8 and, if so, whether it was proportionate, and whether the panel had failed to consider relevant guidance.

1. Traditional judicial review challenge. The Public Protection Manual required consideration of matters including the origin and identity of the photographs, the risk to the child, possible networking or sharing, and parental responsibility. The panel had considered those matters, together with the claimant’s assessed risks, the prison setting, and the possibility of photographs being shared among offenders. The challenge therefore failed.
2. Article 8 threshold. Applying the structured approach in Razgar [2004] UKHL 27, the restriction was of marginal significance. It did not prevent family visits or possession of current photographs of family members. In the circumstances, its consequences were not sufficiently grave to engage Article 8. The court did not need to decide whether there had been an interference with private life, although it would have found an interference if necessary.
3. Alternative proportionality conclusion. If Article 8 were engaged, the restriction was in accordance with law and pursued legitimate aims including public safety, prevention of crime, protection of morals, and protection of the rights of others. Its limited nature was proportionate to the claimant’s assessed high risk of harm to children and the possibility of networking or sharing photographs within the prison.
4. The application for judicial review was refused.

The judgment records that an earlier judicial review was considered on the papers by Blake J, who regarded it as premature. On 17 December 2009 the present court approved a consent order staying that application so that a fresh decision could be made. Following the fresh decision, HHJ Kay granted oral permission on 26 May 2010. The present court refused the substantive application.