Monitoring and Confidentiality of Prisoner Correspondence

Szuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009) The European Court of Human Rights has held that it is a disproportionate interference with an individual's right to privacy to monitor their confidential medical correspondence with their specialist.  The prison governor had directed that the applicant's correspondence with his specialist be opened and inspected by the prison medical officer to ensure that there were no illicit enclosures.  The applicant had sought to correspond confidentially with his specialist to ensure that he was receiving appropriate care and supervision with respect to his potentially life-threatening condition.  The applicant, who had lost before the UK Court of Appeal, successfully argued that, by analogy with legal correspondence, the risk of his abusing the confidentiality of his correspondence for illicit purposes was outweighed by the likelihood that inspecting his correspondence would inhibit what he conveyed to the specialist, thereby harming the quality of advice that he received.

Facts

Following his return to prison after having sustained a brain haemorrhage, the applicant sought to correspond confidentially with his specialist in order to ensure that he received the necessary medical treatment and supervision in prison.  The applicant applied to the prison governor for a direction that his correspondence be accorded confidentiality.  Although the request was initially granted, the prison governor subsequently reversed his decision and informed the applicant that all correspondence would be directed to the prison medical officer, who would examine the content of the envelope to ascertain its medical status and ensure that there were no illicit enclosures, before resealing it and forwarding it on to the intended recipient.

Decision

The applicant successfully sought judicial review of the prison governor's decision, and the decision was quashed by a single judge of the High Court.  On appeal to the Court of Appeal, the High Court's decision was reversed.  The applicant then appealed to the ECHR claiming that the monitoring of the applicant's correspondence breached his right 'to respect for his...correspondence', as protected by art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Government conceded that the monitoring of the applicant's correspondence did amount to an interference with his Article 8 right, but argued that this interference was justified and proportionate under art 8 § 2 of the Convention. The Government argued:

• the applicable legal framework provided clear and structured guidance;
• the procedure devised was tailored to the applicant's circumstances; and
• disclosure was limited to the prison medical officer, who was himself bound by duties of medical confidentiality.

The ECHR disagreed, noting that the issue of whether the monitoring was disproportionate centred upon whether it pursued one or more of the legitimate aims referred to in art 8 § 2 of the Convention and was 'necessary in a democratic society'. . Whilst conceding that some measure of control over prisoners' correspondence was compatible with the Convention, the ECHR observed that stringent standards exist for the confidentiality of legal correspondence. These standards, set out in Petrov v Bulgaria (No 15197/02 (22 August 2008)), require exceptional circumstances before a prisoner's correspondence with their lawyer may be read, and dictate that suitable guarantees be implemented to prevent reading the correspondence during inspections for illicit enclosures.  In finding the interference disproportionate, the ECHR gave particular weight to the following findings of fact:

• there were no grounds to suggest that the applicant had ever abused, or intended to abuse, the confidentiality of his medical correspondence;
• the applicant's life-threatening condition made it understandable that he should wish to check the quality of the treatment he was receiving in prison;
• there was an 'inescapable risk of abuse' involved in the monitoring, and that in the course of monitoring the applicant's medical correspondence, the prison medical officer might encounter criticism of his own performance, which could cause difficulties for the applicant's prison life and treatment;
• the address and qualifications of the medical specialist were easily verifiable and the risk that she might be intimidated or tricked into transmitting illicit messages was insufficient to justify the interference, particularly as the same risk attended correspondence with secretarial staff of Members of Parliament, which the court held must be afforded complete confidentiality.

Relevance to the Victorian Charter

The Charter of Human Rights and Responsibilities protects a person's right not to have their correspondence unlawfully or arbitrarily interfered with (s 13(a)).  Relevantly for the application of this case to Victoria, the Convention and the Charter mandate different tests for proportionality. The Charter is structured around a general proportionality test in s 7(2) which requires that Charter rights may only be subject to such reasonable limits as can be demonstrably justified.  Although s 13(a) contains the qualifying phrase 'unlawfully or arbitrarily', it is unlikely that this adds anything to the proportionality test as set out in s 7(2).  Therefore the demonstrable justification test in the Charter is arguably a lower hurdle for the interfering body to overcome than the Convention requirement that the interference be 'necessary'.  Nonetheless, the recognition that correspondence between a specialist medical practitioner and a prisoner is, in certain circumstances, as deserving of confidentiality as legal correspondence, has relevance for conduct by Victorian prison authorities.

Allen Clayton-Greene is a lawyer with Allens Arthur Robinson