Neutral Citation no. [2001] NIQB 19
Ref:     
KERC3436

 
Judgment: approved by the Court for handing down
Delivered:
01.06.2001
(subject to editorial corrections)

 

 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
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IN THE MATTER OF AN APPLICATION BY KEVIN GERARD McCRORY 
FOR JUDICIAL REVIEW
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KERR J
Introduction
            The applicant, Kevin McCrory, is currently an inmate in HM Prison, Magilligan.  He is a sentenced prisoner.  By this application he challenges the decision of the Prison Service for Northern Ireland to introduce new security arrangements in relation to visitors to the prison.
 
Background
            A review of visiting arrangements at the prison began in October 1998.  As a result of this, in March 1999, it was decided that new security procedures should be introduced on 5 April 2000 as a pilot scheme.  Before introducing these changes a consultation exercise was undertaken.  A consultation document was circulated in June 1999 to a range of interested bodies.  These included the Law Society for Northern Ireland and the Bar Council.  The consultation document proposed changes to identification procedures.  The relevant section of the document dealt with these in the following passage: -
"Changes to identification procedures will see visitors being required to produce simple proof of identity - similar to that used for election purposes - on their first visit to a prison.  A computerised system of enrolment on arrival will also be introduced to record visitor and prisoner movement and identification as they enter and leave the visits area.  The final decision on the type of system has not yet been made."
 
After receiving representations, the Prison Service arranged site visits to demonstrate the identification procedures to those who had expressed a particular interest in them.  
            The principal elements of the scheme are: -
1.      On the first visit, a visitor is required to provide proof of identity.  This may be done by producing one of a range of documents.
 
2.      The visitor is photographed.
 
3.      A computer image of the visitor's finger (usually the right index) is taken by way of finger scan.
 
4.      The photograph and finger scan are stored on a computer.
 
5.      A pass is provided to the visitor.  This bears the imprint of the photograph.  The pass is bar coded.  
 
6.  Access to the information stored in relation to the visitor is obtained by screening the bar code on the pass.  The operator then compares the image on the screen with that on the pass.  A further finger scan is then taken and compared with the original to verify the identity of the person presenting the pass.  This exercise is repeated when the visitor leaves the prison.  At the end of the visit the pass is destroyed unless the visitor elects to keep it.
 
            According to the prison authorities, for some time before the introduction of the pilot scheme, professional visitors to prisons in Northern Ireland, including lawyers, had their photographs taken in order to obtain a pass which gave access to the prison visited.  It was suggested, therefore, that the system that has been introduced was merely an extension of former arrangements.  It was also suggested that the current system is secure and protected.  Only users with an authorised identification and password can gain access to the system and all attempts to obtain access are captured on a log.  Specific steps have been taken to prevent hacking into the system and controls are in place to ensure that images cannot be printed or downloaded from the visits system to a readable computer file.  Stored information will be removed from the system if a visitor stipulates that this should be done or, in any event, after the visitor has not visited the prison for a period of three months.  (The only exception to this is a banned visitor whose details are kept in order to police the ban).  The Prison Service intends to enhance computer security by introducing encryption that will prevent any reproduction of information held on the computer.  
            It is claimed that finger scanning alone could not provide an adequate system as some people cannot provide a satisfactory finger scan reading and "measures can be taken to fool the finger scanning system".  It is further claimed that the identification procedures are not intrusive.  The finger scanning takes no more than ten seconds.  In the first week of the operation of the pilot scheme 346 visitors entered the prisons and were enrolled without difficulty.
            The applicant's solicitor disputed the claim that photographs were taken of professional visitors to any of the prison establishments in Northern Ireland.  In sixteen years of practice, he had never been asked to allow himself to be photographed, he claimed.  He suggested that the system that had been introduced as a pilot scheme was an affront to him, to his staff and to the entire legal profession.  He suggested that no prisoner had ever escaped by representing himself as a solicitor. 
            Miss Angela Ritchie, a solicitor in Madden & Finucane, supported the claim of the applicant’s solicitor in relation to the absence of photography on her visits to the prison.  Miss Ritchie had never been photographed, she said, apart from those occasions on which she had attended hearings of the Sentence Review Commissioners.
            John Vincent McCann, the chairman of the Solicitors Criminal Bar Association, in an affidavit filed on behalf of the applicant, averred that there was no objective need for the measures introduced by the pilot scheme.  A solicitor in Mr McCann's office, Ms Ann Marshall, had been finger scanned and photographed.  She suggested that this was both unnecessary and intrusive.
            Paul Mageean, legal officer with the Committee on the Administration of Justice, confirmed that he had received a document from the Prison Service announcing the pilot scheme for HM Prison, Magilligan.  This had merely referred to a requirement to produce simple proof of identity on a first visit to the prison.  Since the document did not mention finger scanning or photography, no representation was made on behalf of CAJ.  Professor Brice Dickson, the Chief Commissioner of the Human Rights Commission, stated that the Commission had no record of having received a consultation document from the Prison Service.  The Commission was concerned about the human rights implications of the new procedures.
            Governor Austin William Treacy explained that the finger scanning and photography procedures had not been referred to in the consultation document because no final decision had been taken in relation to the type of identification system that would be introduced.  A meeting with the Law Society's Criminal Law Committee had been arranged for 2 December 1999 but this did not proceed because the members of the Committee were not available.  Prison Service officials had attended Law Society House for the purpose of the meeting and spoke at length to the deputy secretary of the Society about the new procedures.  Subsequently, on 1 February 2000 a meeting with the Criminal Law Committee took place when the finger scanning and photography procedures were outlined.  No objection to these was raised at the meeting.  On 2 February 2000, Ms Bryson of the Law Society wrote to Mr Treacy in the following terms:-
"I should like to express thanks for you and your colleagues - Walter Dunlop, Geoff Brown, Stephen Murphy, Senior Legal Advisor to NIPS, coming to the Criminal Law Committee meeting on Tuesday 1 February.  I am very grateful for being included in the consultation process and look forward to receiving further information about the revised visiting arrangements as they come to hand.
 
The Criminal Law Committee noted your proposals, many of which will add to the physical comfort and convenience of visitors to the prisons.  However, I must remind you that the Committee can give no commitment that all of them will be entirely satisfactory to all of our members all of the time."
 
            On 28 March 2000 Ms Bryson wrote again to Mr Treacy.  The letter contained the following passage: -
"I have now received comments which are adversely critical of the arrangements from a number of firms of solicitors.  Obviously these are matters for individual action, but I feel it appropriate to pass on their main concern that they cannot be sure of the secure retention of their photographic images."
 
            Mr Treacy also stated that he believed that a copy of the consultation document had been sent to the Human Rights Commission and that he was unable to explain why that body had not received it.  He said that the Prison Service was willing to facilitate site visits by the Human Rights Commission, the Committee for the Administration of Justice and other similar bodies.
 
The judicial review application
            On behalf of the applicant it was argued that the Prison and Young Offenders Centre Rules (Northern Ireland) 1995 did not confer on the prison authorities the right to photograph or finger scan a visitor as a condition of entry to the prison.  The measures were in breach of Article 8 of the European Convention on Human Rights.  They could not be justified under Article 8 (2) because the measures were not in accordance with law and were not, in any event, necessary in a democratic society.  It was also submitted that the imposition of a condition that solicitors be "fingerprinted" (sic) and photographed before having access to their clients was irrational and disproportionate and were in contravention of Articles 10 and 17 of the International Covenant on Civil and Political Rights.
            For the respondent it was argued that the measures had been lawfully introduced.  The Northern Ireland Prison Service is an integral part of the Northern Ireland Office and the Secretary of State for Northern Ireland is its political and administrative head.  Powers conferred on the Secretary of State by the Prison Act (Northern Ireland) 1953 and the Prisons and Young Offenders Centre Rules (Northern Ireland) 1995 authorised the introduction of the new procedures.  The respondent submitted, therefore, that there was no breach of the European Convention on Human Rights or the International Covenant on Civil and Political Rights.
 
The statutory framework
            Section 2 subsection (1) of the Prison Act (Northern Ireland) 1953 provides: -
“The Ministry shall have and may exercise all such powers as appear to it to be necessary for the proper administration and maintenance of any prison including the equipment, provisioning and supply thereof and the making and giving effect to arrangements for the welfare, employment and training of prisoners.”
 
Section 13 (1) (a) of the Act (as modified by S.I. 1973/2163) empowers the Secretary of State to make rules for the administration, regulation and management of prisons.  Exercising this power, the Secretary of State made the Prison and Young Offenders Centre Rules (Northern Ireland) 1995.
            Rule 49 provides: -
“49.-(1) No person may enter the prison without the governor’s permission unless he is entitled to do so.
 
(2)   Any person entering or leaving the prison may be stopped, examined and, with their consent, searched.
 
(3)   Such person shall be searched only by officers of the same sex as that person.
 
(4)   Any person who does not consent to being searched may be denied access to the prison.
 
(5)    The governor may direct the removal from the prison of any person who does not leave on being required to do so.
 
(6)   Under this rule a search of a person may include a search of any item in that person’s possession or of a vehicle.”
 
Under paragraph (1) of this rule the governor may withhold his consent to the entry of persons into the prison unless they are entitled to enter.  It is, in my opinion, clear that the governor may, under this rule, require those wishing to gain entry to submit to certain procedures in order to be permitted to enter the prison.  Provided they are not unreasonable or disproportionate, he may impose such conditions of entry as appear to be necessary.  
            Powers conferred on the Secretary of State in the Prison Act and the Rules are exercised both by him and other ministers.  They are also exercised by civil servants acting on behalf of ministers.  In an affidavit filed on behalf of the respondent Governor Mogg has deposed that the new visiting arrangements introduced as a pilot project were introduced with ministerial approval.  I am satisfied, therefore, that the arrangements were introduced in accordance with law and that the applicant’s challenge under that head must fail.
 
Article 8
            Article 8 of the European Convention on Human Rights provides: -
“1.   Everyone has the right to respect for his private and family life, his home and his correspondence.
2.   There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
 
It was argued for the applicant that the conditions of entry into the prison imposed on his legal representatives and other visitors represented a violation of his Article 8 rights.
            For the respondent it was argued that nothing about the pilot scheme compromised the applicant’s Article 8 rights.  The measures that had been introduced did not interfere with his private life, much less fail to accord respect for it.
            The European Court of Human Rights has recognised the importance that must be attached to the protection of the relationship between a lawyer and his client.  In Niemietz v Germany [1992] 16 EHRR 97 the offices of the applicant, a lawyer, were searched pursuant to a search warrant granted by a court. The warrant ordered the search in order to find information that would reveal the identity and whereabouts of an individual who was subject to a criminal investigation and against whom the public prosecutor had unsuccessfully attempted to institute criminal proceedings. The applicant alleged that the search had violated his right to respect for his home and correspondence, contrary to Article 8 of the Convention.
            The court held that that the references to an individual’s ‘home’ and ‘private life’ in Article 8 included certain aspects of an individual’s professional or business life, especially where a confidential relationship exists, such as the relationship between a lawyer and his client. This interpretation was consonant with the essential object and purpose of Article 8, namely, to protect an individual from arbitrary interference by the public authorities.  It followed that Article 8 had been breached.
            In that case, significantly, the breach of Article 8 related to the rights of the lawyer, however.  The critical debate in the case centred on the question whether Article 8 extended to cover the professional relationship of the applicant with his client, not whether the search of his offices constituted a breach of the rights enshrined in the provision.  In the present case the respondent has not sought to argue that the relationship between Mr McCrory and his solicitor is incapable of engaging Article 8.  Rather, the respondent contends that there was in fact no violation because the measures that have been introduced are in accordance with the law and are necessary in a democratic society.
            In support of the claim that the restrictions imposed on the visit of lawyers to the prison constituted a breach of Article 8, Mr Larkin for the applicant relied heavily on the decision in R v Secretary of State for the Home Department ex parte Leech (No.2) [1994] QB 198.  In that case the applicant was a prisoner who was engaged in or was contemplating various civil actions.  Concerned that correspondence with his solicitor was being subjected to censorship under the Prison Rules 1964, he applied for judicial review to quash the prison governor's power, under rule 33(3), to censor a prisoner's correspondence, in so far as it included letters between the prisoner and his legal adviser concerning legal proceedings not yet commenced.  The Court of Appeal held that it was a principle of fundamental importance that every citizen had a right of unimpeded access to a court, and to a solicitor for the purpose of receiving advice and assistance in connection therewith, and, although section 47 (1) of the Prison Act 1952 was to be interpreted as authorising some interference with the general right of confidentiality, it did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and client about contemplated legal proceedings.  
            Mr Larkin argued that the new regime for visitors introduced by the prison authorities constituted precisely such an impediment since the applicant’s solicitor was not prepared to submit to its requirements and that the denial of access to his solicitor constituted a breach of the applicant’s Article 8 rights.  This argument must be examined in the context of the avowed need for the new measures.  It cannot be the case that a solicitor, because of his own particular sensibilities, would be entitled to refuse to submit to reasonable security requirements, and thereby bring about a breach of his client’s Article 8 rights. 
            Mr Larkin pointed out that there had never been an instance of a prisoner attempting to escape while masquerading as a lawyer.  Moreover, HMP Magilligan is a low security prison and such measures had not been deemed necessary in the high security regime of HMP the Maze.  He suggested therefore that the proposed changes were quite unnecessary.  In this context, Mr Larkin submitted, the court’s review of the question whether the measures were required should not be conducted on the same basis as a Wednesbury challenge.  Mr Larkin argued that the court should be prepared to quash the decision to introduce the changes unless convinced by the material proffered by the respondent that they were essential.
            Any assessment of the need for and the proportionality of the impugned measures must include an evaluation of the level of obtrusiveness that they involve.  In my judgment this is not substantial.  One can understand that solicitors who have not previously been subject to measures such as these will feel concern about their introduction but, properly analysed, they do not constitute a significant encroachment on their privacy.  The fingerscan and the photographic image of the visitor are stored in secure conditions and safeguards are in place to prevent that material being retrieved from the computer by unauthorised persons.  Many of the objections made to the measures appear to relate to the dignity of the legal profession rather than any legitimate claim to privacy.  Thus, Mr MacElhatton, in his first affidavit, stated that he considered that the new system was “a personal affront, an affront to the integrity of my staff, and more generally an affront to the professional integrity of the entire profession”.  He repeated these assertions in his final affidavit.
            Governor Treacy accepted that the use of fingerscanning was intrusive but suggested that this was a simple, speedy and effective method of establishing identity.  The measures were designed to provide enhanced security against prisoner escapes and to improve control over visitors to the prison, for example in relation to drug smuggling.  This statement elicited the riposte from Mr MacElhatton that he took exception to such measures being applied to him and his colleagues.  But Governor Treacy did not suggest that either Mr MacElhatton or any other solicitor would be complicit in the smuggling of drugs or the escape of any prisoner.  He merely stated that the measures were designed to combat these anticipated problems.  
            Mr MacElhatton asserted trenchantly that these measures were entirely unnecessary and disproportionate.  It appears to me, however, that a measure of discretion should be available to the prison authorities in deciding what is required to combat the risk of escape from the prison or the illegal importation of drugs to it.  I do not consider that the lack of any experience of prisoners seeking to pass themselves off as lawyers must be taken as indicating that there is no risk that this will happen in the future.  
            The pilot scheme that has been introduced has been subject to review.  An independent evaluation of the system was carried out by HM Prisons Inspectorate for Scotland in late October/early November 2000.  One of the objectives of the review was to assess the social impact of the new arrangements on prisoners and visitors.  The report concluded that the system was reliable.  There had been only one breakdown due to the hardware overheating and visitor confidence in the system appeared to be quite high although there had been a few instances of failure to delete professional visitors’ details.  Visits were more predictable and manageable and staff could “keep track of who was coming into the prison”.  Two thirds of professional visitors felt that the arrangements for finger scanning, taking photographs and searching were either good or very good.  The general assessment of the report was that “almost all visitors who had visited other prisons or who had experience of visits at Magilligan before the new arrangements had been introduced, considered the new system to be far superior on a range of measures”.  The system appeared to be reliable and secure.  The investigating team considered that the visiting arrangements were operating effectively and were the best that they had seen.
     In my view, this report provides powerful evidence that the measures are appropriate and proportionate.  As I have said, I believe that a measure of discretion should be available to the prison authorities as to the system required to deal with the risk of escape.  While it is true that a review of the proportionality of the new system is not to be conducted on traditional Wednesbury principles, it has been recognised that a margin of appreciation is available to state authorities in the implementation of measures considered by the legislature or the Executive to be necessary.  In R v Director of Public Prosecutions ex parte Kebeleine and others [2000] 2 AC 326, 379 Lord Hope of Craighead dealt with this topic thus: -
“The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court: Buckley v. United Kingdom (1996) 23 E.H.R.R. 101, 129, paras. 74-75. Although this means that, as the European Court explained in Handyside v. United Kingdom (1976) 1 E.H.R.R. 737, 753, para. 48,"the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights," it goes hand in hand with a European supervision. The extent of this supervision will vary according to such factors as the nature of the Convention right in issue, the importance of that right for the individual and the nature of the activities involved in the case. 

This doctrine is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. 

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society.  In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para. 3.21 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill and Mr. Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the ‘discretionary area of judgment.’  It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is stated in terms which are unqualified the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society: Murray v. United Kingdom (1994) 19 E.H.R.R. 193, 222, para. 47.” 
 
The measures under challenge in this case were made with ministerial approval.  They involve the evaluation of the risk of escape and the assessment of the suitability of the proposals to meet that risk by those experienced in the area.  In reviewing the question whether these measures are “necessary in a democratic society” the court must not be unduly deferential to the decision of the prison authorities but it should recognise that they enjoy a level of expertise in the matter of security within prisons that should not be lightly disregarded.
            In this context, it is also important to acknowledge that the requirement that the measures be necessary in a democratic society does not equate with their being indispensable – see Handyside v United Kingdom [1976] 1 EHRR 737 at para 48.  I consider, therefore, that the measures have been shown to be in accordance with law and necessary in a democratic society and that no violation of Article 8 arises.  
 
Article 6
            A subsidiary argument was made on behalf of the applicant that the imposition of these measures, since they deterred the attendance of his solicitors on him, constituted a violation of Article 6 of the Convention which guarantees the right to a fair trial.  It was submitted that his right to a fair trial extended to consultation with his solicitors in prison.  Since I have concluded that the measures were necessary and proportionate, it follows that the applicant’s solicitors have no justification for their refusal to enter HMP Magilligan and that no breach of Article 6 arises, therefore.
 
Articles 10 and 17 of the International Covenant on Civil and Political Rights 
            It has been consistently held that international instruments such as the International Covenant do not afford individuals rights enforceable in domestic law – see, for instance, Re Adams [2001] unreported.  In any event, I am satisfied that no breach of these provisions arises in the present case.  
 
Conclusions
            I am satisfied that the measures were both necessary and proportionate.  They were introduced according to law.  None of the various challenges to their validity has been made out and the application for judicial review must be dismissed.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
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IN THE MATTER OF AN APPLICATION BY KEVIN GERARD McCRORY 
FOR JUDICIAL REVIEW
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JUDGMENT

OF

KERR J
 
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