Wednesday 6 June 2012
Mr Justice Treacy, sitting today in the High Court, rejected an application for judicial review by Louis Maguire seeking a declaration that Rule 67(8) of the Prison and Young Offenders Centre Rules (Northern Ireland) 1995 is incompatible with Art. 8 ECHR and ultra vires.
Louis Maguire is a sentenced prisoner serving a life sentence for murder at HMP Maghaberry. His conviction is currently under appeal. He states that his family visits are impaired by the requirement that all prison visits take place within the hearing of a Prison Officer and this interferes with his Article 8 rights.
The Northern Ireland Prison Service (the Respondent) states that the rule is lawful, necessary and proportionate.
Rule 67(8) states:
(8) Subject to rule 71 [on communications with legal advisors], every visit to a prisoner shall take place within the hearing of an officer, unless the Department of Justice otherwise directs
The judge identified the following questions which he should consider:
The judge makes two points, one is that Rule 67(8) is not a discretion, it is a hard and fast rule which is accessible and foreseeable. Secondly, the rule must be read in conjunction with the general principles of the Prison Rules at Part 1 which stipulates that they will impose no more restriction than is necessary for safe custody and well-ordered community life. He states that the rules are subject to judicial review, therefore the argument that there is no judicial oversight of this rule is not well-founded.
The judge states that when a blanket restriction is put in place it must be thoroughly scrutinised. He states that the next question to be considered is if the rule is necessary and proportionate. He asks ‘Is it necessary in a democratic society that all visits to prisoners must be within the hearing of a Prison Officer? Or would the protection of the interests provided for in Art. 8(2) be adequately catered for by some other means?’ (This is paraphrased from C and Ors  NIQB 101 at para 79). The judge concluded that the blanket restriction did not go beyond what is necessary to secure the interests provided for in Art. 8(2).
In an affidavit on behalf of the Respondent, the purpose of Rule 67(8) was outlined:
“to allow visits to prisoners to be properly monitored and ensure that no threat to the good order of the prison is being discussed or planned ... it is necessary to ensure that any criminal activity including details of a security nature are not being discussed.”
The affidavit also described the level of monitoring carried out (this is undisputed by the Applicant):
“A prison officer will be overtly present in the visits room and will patrol the area ... it is not the case that Prison Staff will micro-supervise that visit and listen in to all of the content of the conversation. In reality the Prison Staff listen to little, if any of the detail or continuity of the conversations.”
The judge states that in assessing the proportionality of the rule the Applicant does not contend that the interests which it seeks to protect are insufficiently important or that there is no rational connection to the end sought. In weighing the proportionality then the only outstanding issue is the third strand of the de Freitas test, i.e. that the means used are no greater than necessary to accomplish the objective. The judge states that this level of monitoring seems very firmly within bounds proportionate to the desired objective.
The judge states that for these reasons he rejects the application and finds Rule 67(8) is in accordance with law and is necessary and proportionate.
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