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Donaldson, Re Leave To Apply
For Judicial Review [2008] NIQB 42 (04 April 2008)
Ref: WEAH4835.T
IN THE HIGH COURT OF JUSTICE IN NORTHERN
IRELANDQUEEN'S BENCH DIVISION
(JUDICIAL REVIEW)____________
AN APPLICATION BY CHRISTOPHER DONALDSON
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
____________
WEATHERUP J
[1] This is an application for
leave to apply for judicial review of two decisions of
the prison authorities. The first concerns the policy of
the Prison Service directing prisoners not to wear
Easter lilies outside the cells in the segregated wing
at HMP Maghaberry and the second concerns disciplinary
charges being preferred against the applicant for
refusing to remove an Easter lily that he was wearing on
Easter Sunday 23 March 2008. Mr Hutton appeared for the
applicant and Mr Dunlop appeared for the respondent.
[2] The background, as appears
from the applicant's solicitor's affidavit, is that he
is a sentenced prisoner in the republican segregated
wing in Roe House HMP Maghaberry. He has been in custody
since June 2004 and is serving a twelve-year sentence
and is due for release on 2 June 2010. He is housed in
segregated conditions, which means that in practice
republican prisoners are housed together and have no
contact with any prisoners who are not republicans. It
appears that on Easter Sunday the applicant was
returning from the exercise yard with an Easter lily
affixed to his outer clothing. He was ordered by a
prison officer to remove this emblem and he refused.
Later he was charged with disobeying a lawful order.
[3] This issue has been
addressed by the Court on two previous occasions. First,
in Byers Application [2004] NIJB 252, the
application was made by a prisoner who was housed in
integrated conditions within the prison. The judgment in
essence dealt with two grounds for judicial review. One
was that the policy in relation to the wearing of this
emblem represented an undue interference with the
applicant's right to freedom of expression under Article
10 of the European Convention and the other that the
policy was discriminatory in that it unjustifiably
differentiated between the wearing of Easter lilies,
which was prohibited, and the wearing of poppies, which
was permitted. The policy of the Prison Service was
stated to be that certain emblems are permitted, such as
poppies or shamrock, although they are primarily symbols
of particular traditions, while certain emblems are
prohibited such as Easter lilies or Orange lilies,
because while they may be symbols of a particular
tradition they are also regarded as paramilitary symbols
of conflict.
[4] In dealing with the issue
in relation to integrated prisoners in Byers
Application I was satisfied that the wearing of an
emblem amounted to an "expression" for the purposes of
the right to freedom of expression under Article 10 and
decided that restrictions on expression in the form of
the wearing of emblems are not a necessary incident of
imprisonment. Accordingly, the restrictions on the
wearing of the Easter lily amounted to an interference
with freedom of expression and had to be justified. I
was satisfied that the restriction was prescribed by law
and was in pursuance with a legitimate aim, namely the
prevention of disorder and crime by maintaining order
and discipline in the prison. On the issue of the
proportionality I referred to the context of the
restriction, being an integrated prison with necessarily
confined conditions housing prisoners from a divided
society; that certain emblems are perceived as
representing primarily one tradition or another and
certain of those emblems also come to be regarded as
representing the unlawful paramilitary activity of a
tradition; that when an emblem came to represent
conflict rather than simply tradition its character
changed; that change occurred when the perception of
others was that the emblem primarily represented
conflict. In the particular case I was satisfied that
the extent of the interference with the freedom of
expression was limited to the wearing of the emblem in
the communal areas of the prison where the potential
disruption would arise and in the circumstances I was
satisfied that the restrictions on the use of the Easter
lily were proportionate and not a breach of Article 10.
[5] On the issue of
discrimination the applicant in Byers Application
contended that the restriction was discriminatory on the
grounds of his religious and political/cultural beliefs
and was a breach of Article 14 of the European
Convention taken in conjunction with Article 10. The
applicant accepted that paramilitary badges are symbols
of the conflict in Northern Ireland and could be subject
to restrictions. However the applicant placed the Easter
lily in a different category to a paramilitary badge or
a symbol of the Northern Ireland conflict and treated it
as being in the same category as the poppy or the
shamrock. I was satisfied that the characters of the
poppy and the shamrock were not generally perceived as
primarily emblems of the conflict. From the applicant's
point of view it may have been that he viewed the poppy
as an emblem of conflict, as representing British
militarism in Ireland, but the Fair Employment
Commission did not consider that the poppy was perceived
as a conflict emblem. I accepted the objective and
reasonable justification for the different treatment of
the Easter lily that was offered on behalf of the
respondent.
[6] The matter then moved on to
the decision of Girvan J in McCafferty's Application,
decided on 9 February 2007. That application
related, as this application does, to a prisoner in
segregated conditions. The application arose in relation
to the wearing of the Easter lily on Easter Sunday, 16
April 2006. It was alleged that the restriction was
contrary to the right to freedom of expression under
Article 10 of the European Convention. The applicant was
a prisoner in Roe House in the republican separated
regime and he was returning from Mass in Roe House
wearing an Easter lily that he was ordered to remove. He
contended that the prison policy permitting the wearing
of Easter lilies in cells, but not elsewhere, made no
sense.
[7] The Governor filed an
affidavit referring to emblems that were perceived to be
identified primarily with the Northern Ireland conflict
and that such emblems must be seen as potentially
disruptive and dangerous to the interests of good order
and discipline. He accepted that, while it was true that
prisoners such as the applicant were detained in
separated regime premises, they are less likely to come
into contact with non-republican prisoners but the
potential for conflict could not be ruled out. The
restriction on the wearing of emblems which might be
inflammatory was, therefore, likely to assist good order
and discipline in the prison. Mr Hutton, for the
applicant, seeks to make a factual distinction in the
present case because the evidence of the applicant on
this leave application is that there is total separation
in the prison and that republican prisoners do not come
into contact with loyalist prisoners.
[8] However there was another
theme in McCafferty's Application, in that the
Governor's affidavit was concerned with the impact on
the segregated regime of the wearing of the emblem in
the separated conditions. It was stated that any
relaxation of the rules regarding the emblems for
separated republican prisoners would have an unwelcome
impact on the Prison Service policy of providing equal
and common conditions for all prisoners. It was said
that there would be an artificial distinction between
separated and integrated prisoners if Easter lilies were
permitted in the separated conditions. It was not the
intention of the separated regime to allow prisoners
held in such conditions to benefit from any enhancements
as a result of being separated prisoners.
[9] Girvan J referred to the
decision in Byers Application and noted that the
thrust of the applicant's case in McCafferty's
Application was that there was a fundamental
difference between the position of prisoners in the
integrated regime and those housed in the separated
regime where there was no real contact on a daily basis
with non-republican prisoners. The Prison Service
argument was that the imperative was the minimising of
the distinction between integrated and separated
prisoners and prevention of the development of Maze
style paramilitary control within the separated
conditions. Further, it was stated that there was a need
to protect the rights of those, other than prisoners,
who may come into contact with a prisoner wearing such
an emblem of conflict and to ensure a neutral working
environment. This was a concern for the staff who worked
in the prison rather than the other prisoners.
[10] Girvan J entertained some
doubt about the proposition in Byers Application
that restrictions on expression in the form of emblems
were not a necessary incident of imprisonment. However
Girvan J was prepared to accept that position in the
light of Counsel for the respondent's concession that he
should proceed on the basis that that formulation was
correct. Girvan J stated that the competing arguments of
the parties were finely balanced and that there was
force in the applicant's argument that a prisoner in the
separated regime was in a different position from
prisoners in the integrated section; that Byers
Application did not address the issue of separated
conditions; that the Prison Service was found to be
entitled to take steps to ensure that inroads into the
overall prison system brought about by the separated
conditions were strictly limited and that applying the
same restriction to all prisoners achieves that
legitimate policy aim, thus leaving the prisoners in Roe
House with the same rights as other prisoners to wear
the Easter lily in their cells. He concluded by stating
that restrictions on the right to wear political symbols
was a minimal interference with Article 10 rights and
was justifiable having regard to the contingencies of
ensuing an objectively based prison service.
[11] The applicant's grounds
in this case are in essence interference with the right
to freedom of expression under Article 10 of the
European Convention and discrimination under Article 14
together with Article 10. It would be necessary to amend
the Order 53 Statement because the ground there relied
on deals with discrimination between the wearing of
Easter lilies and the wearing of poppies, whereas the
discriminatory conduct that Mr Hutton relied on was the
distinction between the rules applied to the separated
prisoners and the rules applied to the integrated
prisoners.
[12] On Mr Hutton's approach,
faced with McCafferty's Application which is
against his application, he contends that
McCafferty's Application was wrongly decided. First
of all he contends that in consideration of Convention
rights there is a wider scope that applies to the
qualified rights when one is dealing with a prisoner,
who by the very nature of being a prisoner suffers
restrictions, so that a broad interpretation has to be
given to Article 10. In this regard the applicant relies
on McCotter v The UK [1993] 15 EHRR 98 gave a
wide scope to the concept of family life for the
purposes of Article 8 of the Convention when it was
applied in relation to a prisoner.
[13] Further, the applicant
contends that there was not minimal interference in this
case in that the nature of the restrictions that were
imposed were unnecessary because they applied within the
confines of the segregated conditions where there were
no other prisoners with whom the applicant and his
fellow republican prisoners would come into contact.
[14] Further, the applicant
emphasised the differences between the integrated and
the separated schemes and contended that different cases
should be treated differently. The justification
advanced in the case of the integrated prisoners, which
was based on the risk of disorder, did not apply in the
segregated conditions where there were no prisoners who
were likely to react to the use of the emblem. Therefore
it was said that the risk of disorder would not arise in
the separated areas. In addition it was contended that
the aim of the policy in the segregated areas, as
outlined in McCafferty's Application, concerning
the limiting of differences between the integrated and
segregated prisoners and the impact on staff, are not
legitimate aims under the Convention.
[15] Mr Dunlop for the
respondent contends that McCafferty's Application
illustrates that the legitimate aims in relation to
segregated prisoners include the rights and freedoms of
others. One concern relates to the display of conflict
emblems to staff, with the parallel being drawn with any
working environment and the provision of a neutral
working environment, which it is said should not involve
conflict emblems. Another concern relates to the
limiting of the differences between integration and
segregation, so that the prison authorities want to
accord to the segregated prisoners as many of the
conditions as possible that apply to the integrated
prisoners. The aims are said to be legitimate policy
matters and they relate to the rights and freedoms of
others. The competing rights and freedoms of others are
not required to be Convention rights - Tweed's
Application [2007] NIQB 69 paragraphs 21 -24.
[16] I am satisfied that
McCafferty's Application was not wrongly decided. I
propose to follow the judgment of Girvan J. The
application for leave to apply for Judicial Review is
refused.
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