MA, R (On the Application Of) v Secretary of State for Justice & Ors

A prisoner’s Article 8 rights survive imprisonment in attenuated form. Restrictions on family contact must be justified by firm evidence of a relevant risk and must be rationally connected to that risk. A total prohibition is unlawful where supervised calls, visits or other safeguards could address the concern. Prison authorities must scrutinise the risk said to arise from the contact itself, rather than rely on general concerns about future offending or the relationship. Published policy requiring reasonable efforts to accommodate inter-prison visits must be followed, although the policy governing inter-prison telephone calls gives an operational manager discretion whether to permit them.

The claimant and her wife were prisoners serving sentences of imprisonment for public protection in different establishments. The defendants refused telephone contact and inter-prison visits, while earlier restrictions had also prevented written correspondence. The claimant challenged the decisions under Article 8 ECHR and on public law grounds, relying on the Prison Rules and prison service instructions.

The court considered whether the restrictions were necessary and proportionate, whether they complied with published policy, whether the claim was in time, and what remedy should follow. The claim concerning written correspondence had previously been considered by the Prisons and Probation Ombudsman.

1. Article 8. The prohibitions on telephone contact and inter-prison visits interfered with the claimant’s private and family life. The defendants bore the burden of showing that the interference was necessary and proportionate under Article 8(2). The court accorded significant weight to the governor’s expertise, but was required to examine carefully the underlying risks, the way contact would exacerbate them, and whether less restrictive measures were available.
2. The defendants had not established a sufficiently clear or consistent risk arising from the contact itself. General concerns about future offending were primarily matters for the Parole Board once release was considered. The evidence did not adequately explain what would occur during a call or visit, or how it would exacerbate the identified risks. The evidence also failed to show that contact would materially affect the interested party’s conduct or rehabilitation.
3. A total prohibition was in any event unnecessary. Evening monitoring of calls was likely to be sufficient, and simultaneous monitoring could be arranged. An inter-prison visit could take place under the supervision required by the Prison Rules, including in a small room with staff present. Closed or semi-closed visits and other safeguards were available. The restrictions therefore failed the rational connection and least restrictive means stages of proportionality.
4. Policy. Paragraph 6.20 of PSI 49/2011 required establishments to provide the facility for inter-prison calls but left the operational manager with discretion whether, when and how calls should be made. The telephone prohibition was therefore not contrary to policy. Paragraph 5.15 of PSI 16/2011 required reasonable efforts to accommodate inter-prison visits. “Security considerations” referred to safety, security, good order and discipline in connection with the visit, not wider concerns about future offending. The refusal of visits breached the published policy.
5. The claim was issued outside the three-month period, but an extension was granted under CPR 3.1(2)(a), having regard to the prompt application for public funding, the importance of the issues, absence of prejudice and the likely duplication of proceedings by the interested party. The claim concerning written correspondence was dismissed because the alternative Ombudsman remedy had been successfully pursued and no ongoing improper delay or interference was established.
6. The court would grant declarations that the restrictions on telephone contact and inter-prison visits were unlawful. It declined to make mandatory orders, leaving the defendants to determine appropriate conditions. Damages were warranted in principle for substantial anxiety, frustration and distress.