Bruton v The Governor of HMP Swaleside & Anor

Prison authorities must apply the Rule 39 and Confidential Access regimes consistently and in accordance with their legal purpose. Correspondence must be treated as protected where it appears to come from a recognised legal adviser or confidential-access organisation, even if it is not perfectly marked. Repeated openings of protected correspondence may constitute a systemic interference with a prisoner’s common-law right of access to justice and Article 8 rights. Victim status under section 7 of the Human Rights Act 1998 depends on the circumstances as a whole, including repetition, systemic failure, whether correspondence was read, apologies, corrective action and resulting harm. A declaration of breach does not necessarily provide just satisfaction; damages may be appropriate where the infringement is sufficiently serious.

The claimant was an indeterminate-sentence prisoner who sought judicial review concerning the repeated opening or mishandling of Rule 39 and Confidential Access correspondence at HMP Swaleside, HMP Coldingley and HMP Onley. The Prisons and Probation Ombudsman had upheld an earlier complaint and identified failures to implement the applicable Prison Service Instruction. The defendants accepted some breaches but disputed others and argued that the claimant was not a victim for the purposes of section 7 of the Human Rights Act 1998.

The central issues were whether the defendants had failed to apply their own policy and the applicable law, whether the claimant’s common-law and Convention rights had been infringed, whether he retained victim status, and whether relief, including damages and further mandatory or prohibitory orders, should be granted.

1. Policy and legal duties. The defendants had failed properly to apply the Rule 39 and Confidential Access regime. The applicable rules and PSI 49/2011 required staff to protect correspondence which appeared to come from a recognised legal adviser or a body entitled to confidential access, even where the envelope was not perfectly marked. HMP Swaleside’s repeated failures over a prolonged period resulted from inadequate training, poor records and systemic shortcomings, although there was no finding of a deliberate policy of targeting the claimant (paras [36]-[46]).
2. Access to justice. A prisoner’s right to unimpeded access to his lawyer forms part of the constitutional common-law right of access to justice. That right was breached. Repeated openings caused the claimant to become deterred from pursuing his rights, even though the correspondence had not been shown to have been read (para [47]).
3. Convention rights and victim status. Article 8 protects prisoners against unjustified interference with correspondence and private life. The State bears the burden of providing a lawful justification. In assessing whether a prisoner is a victim under section 7 of the Human Rights Act 1998 and Article 34, relevant factors include the number and repetition of openings, whether they were deliberate or systemic, whether correspondence was read, whether the prisoner was targeted, the adequacy of apologies and corrective steps, and resulting damage (paras [48]-[59]).
4. The claimant was readily a victim. The number of breaches, their duration, their occurrence at three prisons, the systemic nature of the failures, and the inadequate and delayed response distinguished his case from Francis v The Home Office and Woodin v The Home Office (para [60]).
5. Relief. A Convention breach does not automatically require financial compensation. In this case, however, damages were necessary and appropriate as just satisfaction. A declaration was also appropriate. The court declined to make prohibitory or mandatory orders, leaving the Secretary of State to determine how compliance should be secured in light of available resources. The harassment ground was not considered necessary to determine and was observed to be misconceived (paras [61]-[64]).