PROCEDURE

The case originated in an application (no. 36936/05) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Edward Szuluk (“the applicant”), on 14 October 2005.

The applicant, who had been granted legal aid, was represented by Mr J. Scott, a lawyer practising at Langleys Solicitors in York. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan of the Foreign and Commonwealth Office, London.

The applicant alleged that the monitoring of his medical correspondence while he was in prison breached his right to respect for his correspondence and private life under Article 8 of the Convention.

On 7 February 2008 the President of the Chamber decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1955 and is currently in prison in Staffordshire.

A. The applicant’s brain haemorrhage and initial confidentiality of his medical correspondence

On 30 November 2001 the applicant was sentenced by a Crown Court to a total of fourteen years’ imprisonment for conspiracy to supply Class A drugs and two offences of possession of a Class A drug with intent to supply.

On 6 April 2001, while on bail pending trial, the applicant suffered a brain haemorrhage for which he underwent surgery. On 5 July 2002 he underwent further surgery. Following his discharge to prison, he required monitoring and was required to go to hospital every six months for a specialist check-up by a neuro-radiologist.

In 2002 the applicant was held in a high-security prison which held Category A (high-risk) prisoners as well as Category B prisoners such as himself. As a result, he fell within the provisions of a general order, Prison Service Order (PSO) 1000, which applied to all prisoners of whatever security category who were being held in a unit which held Category A prisoners (see paragraph 28 below).

The applicant wished to correspond confidentially with his external medical specialist to ensure that he would receive the necessary medical treatment and supervision in prison. He expressed his concerns about his medical correspondence with his external medical specialist being read and applied to the prison governor for a direction that such correspondence should be accorded confidentiality.

On 18 September 2002 the governor of the prison in which the applicant was being detained agreed to the applicant’s request. It was decided that the applicant’s medical correspondence would not be read provided that certain conditions were met. All outgoing and incoming mail was to be marked “medical in confidence”. Outgoing correspondence would be checked to ensure that it was being sent to a nominated address and incoming mail was to be marked with a distinctive stamp of the relevant health authority.

B. Subsequent monitoring of the applicant’s correspondence

The prison governor subsequently reconsidered his decision after seeking advice from HM Prison Service Headquarters. On 28 November 2002 the prison governor informed the applicant that he had been advised that it was necessary to examine his medical correspondence for illicit enclosures. All correspondence between the applicant and his external medical specialist would be directed, unopened, to the prison medical officer. The latter would examine the content of the envelope in order to ascertain its medical status and then reseal it. Incoming and outgoing correspondence would then be sent to the applicant and his external medical specialist respectively.

The applicant contested the decision to monitor his medical correspondence. He was concerned that his attempts to confirm that he was receiving adequate treatment in hospital might be regarded by the prison medical officer as criticism and that this might inhibit his relationship with his external medical specialist.

C. Judicial review proceedings

On 4 August 2003 the applicant applied for leave to apply for judicial review of the prison governor’s decision of 28 November 2002. On 20 February 2004 the presiding High Court judge, Mr Justice Collins, allowed the applicant’s claim for judicial review.

The Prison Service had submitted, inter alia, that it would be difficult to make the necessary arrangements to permit medical correspondence to remain confidential. They argued that there were a large number of health bodies with which a prisoner might wish to correspond and that some health bodies might lack franking machines that would enable prisons to identify the authenticity of the sender.

Mr Justice Collins concluded that there were exceptional circumstances in the applicant’s case. The exceptional circumstances were said to be the life-threatening nature of the applicant’s condition and his desire to ensure that his treatment in prison did not affect him adversely. The applicant, understandably, wanted to obtain reassurance from the medical specialist who was involved in treating him and from whom he required continual medical care, in the form of biannual specialist observations. Mr Justice Collins also found that the initial decision of the prison governor to enable the applicant to correspond on a confidential basis with his external medical specialist indicated that it was reasonable to permit such confidential correspondence. The evidence of the Prison Service as to the practical problems involved in making arrangements to enable confidential medical correspondence were not directly material in an exceptional case such as the present one.

In the circumstances, and emphasising that this was a case which turned on its own exceptional facts, Mr Justice Collins considered it appropriate to quash the prison governor’s decision of 28 November 2002. He granted the applicant a declaration that “the governor of whatever prison the [applicant] resides [in] should make a decision in accordance with the principles made in light of this judgment”.

D. The proceedings before the Court of Appeal

On 29 October 2004 the Court of Appeal allowed the appeal by the Secretary of State and the prison governor. Lord Justice Sedley gave the judgment of the court. It was noted that there was no dispute that the reading of prisoners’ correspondence was governed by law, and that it was directed to the prevention of crime and the protection of the rights and freedoms of others. The issue to be decided was whether, in the language of Article 8 § 2 of the Convention, the reading of the applicant’s correspondence was proportionate. While the prison governor’s initial decision to allow confidentiality to the applicant’s medical correspondence with his external medical specialist strongly suggested that its exemption from Chapter 36.21 of PSO 1000 would be a perfectly reasonable course, the onus still remained on the applicant to establish that anything more invasive would constitute a disproportionate interference with his Article 8 rights.

The Court of Appeal concluded that although the procedure set out in the prison governor’s letter of 28 November 2002 amounted to an interference with the applicant’s right to respect for his correspondence, the interference was justified and proportionate under Article 8 § 2 of the Convention. It considered that although it was of course possible to verify the existence, address and qualifications of the applicant’s external medical specialist (whose bona fides was not in question), there was no way of ensuring that the latter would not be intimidated or tricked into transmitting illicit messages. While the same was true of, for example, the secretarial staff of members of parliament (MPs), the importance of unimpeded correspondence with MPs outweighed the risk. By contrast, as regards correspondence with doctors, the prisoner’s health was the concern and the immediate responsibility of the Prison Medical Service. Though it may well be the case that allowing the prison medical officer to read the prisoner’s correspondence with an outside medical practitioner might lead the former to “encounter criticism of his own performance”, it was inherently unlikely that this would carry the same degree of risk that might attend the reading by a discipline officer of a letter of complaint to the Prisons Ombudsman. Moreover, if it related to the prisoner’s well-being it was probable that the prison medical officer ought in any event to know about it.

The Court of Appeal concluded that the monitoring of the applicant’s medical correspondence was a proportionate interference with his Article 8 rights, although it did not exclude the possibility that in another case it might be disproportionate to refuse confidentiality to medical correspondence in the prison context. The Court of Appeal based its conclusion on the following factors. Firstly, the monitoring of the applicant’s medical correspondence answered legitimate and pressing policy objectives which were clearly stated in Chapter 36.1 of PSO 1000 (see paragraph 28 below). Secondly, short of withdrawing all scrutiny, it considered that there was no less invasive measure available to the prison service. Thirdly, the reading of the applicant’s medical correspondence which was limited to the prison medical officer was not in its view excessive. Fourthly, the process by which the measure had been decided upon was not found to be arbitrary. In particular, it had not been the result of the rigid application of a policy. The withdrawal of monitoring had not only been considered but had been implemented until, upon reconsideration, monitoring had been resumed. The interference in question had not denied the essence of the applicant’s Article 8 rights as it related to one correspondent only (the external medical specialist) and it confined the interference to a medically qualified reader (the prison medical officer). It was recognised that there was an inescapable risk of abuse, for example, if the applicant’s prison life or treatment was made more difficult because of what he was observed to be writing. However, the risk, having been minimised by virtue of confining surveillance to the prison medical officer, was outweighed by the above-mentioned factors.

E. Petition to the House of Lords

On 18 April 2005 the applicant’s petition for leave to appeal was refused by the House of Lords on the ground that the petition did not raise an arguable point of law of general public importance.

F. The applicant’s current conditions of imprisonment

Since 22 May 2007 the applicant has been located in a Category B prison in Staffordshire.