Malcolm v Secretary of State for Justice

Article 8 may in principle protect the interest of prisoners in exercising in the open air, particularly during solitary confinement. It does not automatically create a fixed entitlement to a specified period of exercise. A discretionary prison policy cannot determine the content of an Article 8 right merely because the policy later changes. The seriousness of an alleged interference must be assessed on the particular facts, including the extent of exercise provided, its effects, and the claimant’s conduct. A prisoner’s deliberate choice to remain in a regime known to provide less exercise may be relevant, and may itself prevent an interference from arising. If Article 8(1) is engaged, the requirement that an interference be in accordance with the law requires attention to domestic public law. A published policy must be followed unless there is good reason to depart from it.

The appellant, a life sentence prisoner, was held in the segregation unit at HMP Frankland for 159 days. He generally received about 30 minutes of open-air exercise daily, rather than the minimum one hour stated in Prison Service Order 4275. The High Court dismissed his claims in misfeasance and under Article 8. The appeal concerned only the Article 8 claim.

The Court of Appeal considered whether the shortfall constituted an interference with the appellant’s private-life rights under Article 8(1), and, if so, whether it was justified under Article 8(2), including whether the regime was in accordance with the law.

1. Appeal dismissed. Richards LJ, with whom Black LJ and Mummery LJ agreed, upheld the conclusion that the exercise regime did not interfere with the appellant’s Article 8(1) rights.
2. Exercise in the open air was capable in principle of being an interest protected by Article 8, especially in the context of prison life and solitary confinement. Article 8 did not itself confer an entitlement to one hour’s exercise, and such content could not be supplied by a discretionary policy which was later withdrawn and replaced by a 30-minute requirement.
3. The alleged shortfall was not sufficiently serious to engage Article 8(1). The appellant received about 30 minutes or more daily, suffered no identified physical or mental effects, and had chosen without good reason to remain in segregation despite knowing that he could move to a wing where the minimum hour was provided. Those matters, taken together, meant that the failure to provide the full hour did not amount to an interference. The appellant’s own deliberate choice might independently have supported that conclusion, consistently with the approach in McFeeley v United Kingdom.
4. Richards LJ added an alternative conclusion on Article 8(2). If Article 8(1) had been engaged, the Secretary of State would have faced serious difficulty showing that the interference was in accordance with the law. PSO 4275 was a published policy containing mandatory requirements for the exercise of discretion under rule 30 of the Prison Rules 1999. A decision-maker must follow such a policy unless there is good reason to depart from it. The operational and security difficulties identified at trial did not establish good reason because there was no evidence that the possibility of altering the exercise yard had been reconsidered in 2007.
5. If good reason for departing from PSO 4275 had been shown, the Article 8(2) justification would have presented no further difficulty. The same operational and security matters would have supported proportionality, and the interference would not have required very weighty factors. This was an alternative observation, unnecessary to the result.

• Court of Appeal (Civil Division): The appeal against the High Court’s dismissal of the Article 8 claim was dismissed. [2011] EWCA Civ 1538
• High Court of Justice, Queen’s Bench Division: Sweeney J dismissed the claims in misfeasance and under Article 8. [2010] EWHC 3389 (QB)