Inmate wins damages after prisons open legally privileged letters

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Prison: inmate deterred from pursuing rights

A prisoner has been awarded damages after officers at three different prisons where he was held opened legally privileged letters addressed to him.

Sitting in the High Court, His Honour Judge McKenna said the fear of having his mail opened and read had deterred the inmate from pursuing his rights.

Edmund Bruton is a serving prisoner at HMP Onley. He is a category C prisoner subject to an indeterminate sentence who continues to deny that he is guilty. He has also been a prisoner at HMP Swaleside and HMP Coldingley.

He alleged that mail from his lawyers and others that was addressed to him and attracted the protection of rule 39 of the Prison Rules – which sets out that legal correspondence is subject to confidential handling arrangements – or subject to a similar ‘Confidential Access’ regime for certain other types of correspondence, was improperly opened by prison staff at all three prisons.

HHJ McKenna recorded: “The claimant asserts that, as a result, he is being deterred from pursuing his rights because he worries that his mail will be opened and may be read and that consequently he is both very anxious and distressed and has lost faith in the rules which are in place to protect his rights.”

In 2014, Mr Bruton complained to the Prisons and Probation Ombudsman (PPO) in respect of the opening of legally privileged mail by HMP Swaleside, which was upheld in January 2015. The PPO directed an apology and that steps be taken to comply with the rules. However, a claim for compensation was denied as there was no evidence of loss.

Nothing was done until November 2015, when the claimant received a letter that apologised for the fact that he had felt it necessary to approach the PPO.

HHJ McKenna observed that it did not actually apologise for opening legally privileged mail. “It could not be less fulsome or genuine an apology if it had tried. Moreover, it was unacceptably late; having been due by 15 February 2015.”

He was also unimpressed by the steps taken to address the failings identified in the PPO report.

Another letter of apology was written in July 2016 and further guidance issued to staff. This letter, the judge found, only addressed the breaches in 2014 and put forward “inadequate excuses”.

In total Mr Bruton claimed 34 alleged breaches of the confidential mail regime between April 2014 and February 2017 in relation to the three prisons, mainly HMP Swaleside.

The defendants – the governor of Swaleside and justice secretary – admitted eight, but in relation to Swaleside he found the evidence about the other incidents was “clear and compelling”.

He explained: “The repetitive nature of the alleged breaches suggests serious shortcomings in the mail-handling systems at HMP Swaleside.  There are admissions in the defendants’ own evidence of staff shortages but they do not, of course, explain the continuing failure over many months and it is plain that training has been wholly inadequate and the evidence clearly establishes a lack of knowledge of the regime…

“Moreover the response of HMP Swaleside to the PPO’s report was frankly lamentable and evidences, over a prolonged period of time, a lack of interest in recognising evident shortcomings in its systems still less in implementing effective change.”

Some of the complaints against the other two prisons were upheld too.

HHJ McKenna said: “The right of a prisoner to have unimpeded access to his lawyer is part of the constitutional right to access to justice safeguarded by the common law and that right has clearly been breached in this case even if there has been no deliberate policy of targeting of the claimant and even if in fact the material was not read.

“The effect of the repeated breaches has led to the claimant being deterred from pursuing his rights because of concerns that his mail would be opened and read.”

The judge went on to find that Mr Bruton’s privacy rights under article 8 of the European Convention on Human Rights had been infringed.

“It is necessary and appropriate, having regard to all the circumstances, to make an award of financial compensation. Just satisfaction would not in the circumstances of this case lie in his having established by way of findings in a judgment of public record certain infringements in respect of his rights.”

He asked the parties to agree “a suitably worded declaration” and an award of damages.

However, HHJ McKenna refused to make a prohibitory order preventing the opening of rule 39/Confidential Access mail and a mandatory order requiring HMP Swaleside and the justice secretary to provide training.

“It is for the secretary of state to decide how best to ensure compliance, having regard to the resources available to her.”