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

Factual and Procedural Background

The Plaintiff challenges decisions by the Secretary of State for Justice, the Governor of Prison A, and the Governor of Prison B (collectively "the Defendants") refusing telephone and audio contact and inter-prison visits between the Plaintiff and her spouse, the Interested Party. These refusals began on 5 September 2017 and continued as of 4 March 2020. The Plaintiff also seeks declarations that earlier refusals of all contact, including written correspondence, were unlawful.

Both the Plaintiff and Interested Party are imprisoned for public protection due to sexual offences and are held in different prisons. They met at Prison A in 2015, married in June 2017, and since the Plaintiff's transfer to Prison B, have sought to maintain contact. Initially all contact was refused, but following a report by the Prison and Probation Ombudsman ("PPO"), written correspondence was allowed. Telephone and inter-prison visits remain prohibited.

The Defendants' position is aligned, with the Governor of Prison A taking the lead in decisions. Prison A is a specialist category C prison for sex offenders, running accredited offending behaviour programmes.

The Plaintiff contends the refusals breach public law and interfere unjustifiably with her Article 8 rights under the European Convention on Human Rights ("ECHR"). The Interested Party supports this challenge and has a separate judicial review application stayed pending these proceedings.

The Plaintiff seeks declaratory relief, mandatory orders to facilitate telephone contact and visits, and damages for just satisfaction under the Human Rights Act 1998.

The Defendants contend that the application is out of time, that the Plaintiff and Interested Party pose risks to each other and the community justifying restrictions, and that the restrictions comply with prison policies. They also argue that challenges to past correspondence prohibitions are stale or resolved by the PPO.

The key issues for determination include whether the current prohibitions breach Article 8 ECHR, breach policy, are out of time, and what remedies are appropriate.

Legal Issues Presented

1. Whether the current prohibition on inter-prison visits and telephone contact breaches Article 8 ECHR;
2. Whether the current prohibition breaches relevant prison policy and constitutes public law error;
3. Whether the challenge to the prohibition is out of time and if an extension of time should be granted;
4. Whether there is a claim for breach of Article 8 or policy regarding past or ongoing restrictions on written correspondence;
5. If unlawful conduct is established, what remedies should be granted, including mandatory relief and/or damages.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff and Interested Party remain in a genuine relationship and the Defendants have not demonstrated how telephone or visit contact creates risk within prison.
• The prison's duty is to facilitate rehabilitation opportunities, not to decide the wisdom of relationships.
• The Defendants confuse community risk with risks inside prison, which is their responsibility.
• The Plaintiff has made significant progress, including transfer to open conditions, which is not reflected in the Defendants' risk assessments.
• The Interested Party has capacity to make decisions and no expert evidence suggests contact would harm her.
• No causal link exists between the Interested Party's conduct and contact with the Plaintiff.
• The Defendants have not explained how telephone or visit contact would exacerbate risks.
• Lack of concerns about written correspondence supports that risks can be managed by supervision.
• The Defendants have failed to consider less restrictive alternatives such as monitored calls or supervised visits.
• Simultaneous monitoring of calls is possible and should be used.
• Standard prison visits can be supervised adequately, including closed or semi-closed visits.
• The restrictions appear aimed at ending the relationship rather than managing risk.

Defendants' Arguments

• The application is out of time.
• The Plaintiff and Interested Party pose risks to each other and the wider community justifying the restrictions.
• The restrictions are necessary, proportionate, and comply with prison policies (PSI 49/2011 and PSI 16/2011).
• Telephone calls cannot be monitored contemporaneously, only retrospectively, which is insufficient to prevent harm.
• Supervised in-person visits are difficult to manage and monitor effectively, and costly to arrange.
• The Interested Party is vulnerable and the Plaintiff's controlling behaviour cannot be managed without inappropriate staff intervention.
• The restrictions reflect concerns for the Interested Party's welfare and public protection obligations, not an intention to break up the relationship.
• The Defendants have discretion under prison rules and policy to restrict contact to maintain security and good order.
• Challenges to past correspondence prohibitions are stale or resolved by the PPO.
• Monetary damages are unnecessary; a declaration is sufficient vindication.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court accepted that the Plaintiff and Interested Party's histories and conduct raise serious concerns, and accorded significant weight to the Defendants' expertise, particularly the Governor of Prison A's evidence. However, the Court emphasized the need for a detailed examination of the rationale for restricting private and family life rights under Article 8 ECHR, focusing on the nature of risks and whether contact exacerbates them.

The Court found that the Defendants had not adequately explained how telephone or visit contact would increase risks, nor how "inappropriate activities" during contact would exacerbate harm, with evidence on these points being vague and inconsistent. The Defendants appeared to focus on the existence of the relationship itself rather than specific risks from contact.

The Court noted that the Interested Party's conduct, including access to child images, occurred independently of contact with the Plaintiff, and that the Defendants had not shown a causal link between contact and risk escalation. The absence of any inappropriate content in allowed written correspondence further undermined the Defendants' case.

Regarding proportionality, the Court found the Defendants failed to demonstrate that a total prohibition was necessary. The Plaintiff's proposals for monitoring and supervision were not adequately considered or refuted with convincing evidence. The Court accepted that telephone calls can be monitored after the event and that simultaneous monitoring is feasible under existing policy. Similarly, inter-prison visits can be supervised effectively under prison rules, including closed or semi-closed visits, with staff present and able to listen.

The Court distinguished between risks inside prison, which are the Defendants' concern, and risks in the community, which are primarily for the Parole Board. It concluded that the Defendants had not established that the interference was rationally connected to preventing risks within the prison environment.

On policy compliance, the Court held that the outright ban on telephone calls was not in breach of policy due to the discretion granted to Operational Managers. However, the refusal of inter-prison visits breached policy as the Defendants failed to make reasonable efforts to accommodate visits, as required by PSI 16/2011.

On delay, the Court found the claim was out of time but granted an extension considering the circumstances, including delay in legal aid and the public importance of the issues.

Regarding written correspondence, the Court dismissed the claim as the PPO had already upheld the Plaintiff's complaint and ordered correspondence to be allowed. The Court saw no justification to revisit this issue or find ongoing interference.

On remedies, the Court proposed declarations that the restrictions on telephone contact and inter-prison visits violated Article 8 and that the visit restrictions breached policy. However, it declined to make mandatory orders for contact facilitation, leaving it to the Defendants to determine appropriate conditions. The Court indicated an award of damages was appropriate for the Plaintiff's distress, with parties encouraged to agree on the amount or refer back to the Court.

Holding and Implications

The Court's final decision is to ALLOW IN PART the Plaintiff's claim:

• The prohibition on telephone contact and inter-prison visits between the Plaintiff and Interested Party is unlawful as an unjustified interference with Article 8 rights.
• The refusal of inter-prison visits also breaches published prison policy.
• The claim relating to written correspondence is dismissed as it was resolved by the PPO.
• Declarations will be made to this effect.
• No mandatory orders will be made compelling contact; the Defendants retain discretion to arrange contact under appropriate conditions.
• An award of damages for non-pecuniary loss (anxiety, frustration, distress) is to be made in principle.

The decision directly affects the Plaintiff and Interested Party by requiring the Defendants to reconsider contact arrangements consistent with Article 8 and policy. No new legal precedent beyond application of established principles was set.