DONALDSON v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56975/09
by Christopher DONALDSON
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 25 January 2011 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Registrar,

Having regard to the above application lodged on 30 September 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Christopher Donaldson, is an Irish national who was born in 1983 and lives in Lisburn. He was represented before the Court by Mr F. Shiels of Madden & Finucane, a lawyer practising in Belfast.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant is currently serving a twelve year sentence in HMP Maghaberry. At all material times he was held in Roe House, which was a segregated wing for republican prisoners. Facilities such as the exercise yard and the gymnasium were used separately and the only place where segregated prisoners such as the applicant could come into contact with other prisoners was in the visiting hall.

4. The Northern Ireland Prison Service Standing Orders stated that prisoners were not permitted to wear emblems outside their cells or display emblems in their cells. In HMP Maghaberry, an exception was made with respect to the wearing of shamrock on St Patrick’s Day and the wearing of poppies on Remembrance Day as these emblems were deemed to be “non‑political and non-sectarian” if worn at the appropriate time.

5. On Easter Sunday, 23 March 2008, the applicant affixed an Easter lily to his outer clothing in commemoration of the Irish republican combatants who died during or were executed after the 1916 Easter Rising. A prison officer asked him to remove the Easter lily and when he refused he was charged with disobeying a lawful order under the Prison and Young Offenders Centre Rules (Northern Ireland) 1995. The applicant was subsequently found guilty of disobeying a lawful order and was given three days of cellular confinement by way of punishment.

6. The applicant applied for leave to bring judicial review proceedings challenging, inter alia, the policy of the Northern Ireland Prison Service in respect of the wearing of Easter lilies. In particular, he submitted that the policy represented a disproportionate interference with his right under Article 10 of the Convention freely to express his political beliefs and cultural identity. Moreover, while he accepted that the aim of the policy was the prevention of disorder and crime, he argued that the policy was disproportionate because, as a prisoner held in a segregated wing, there was no risk that he would have contact with anyone who would be offended by the Easter lily. He further argued that the policy was discriminatory as it unjustly differentiated between two analogous comparators, namely prisoners wishing to wear a poppy and prisoners wishing to wear an Easter lily.

7. On 4 April 2008 the High Court refused his application for leave to apply for judicial review. Relying on earlier case-law, the High Court judge held that any interference with the applicant’s Article 10 rights was proportionate and there had been no discrimination.

8. The applicant appealed to the Court of Appeal. Following the hearing, the court reserved judgment. In its judgment of 3 April 2009, the Court of Appeal indicated that as all the material relied upon was before it, it would apply the procedure under Order 53 Rule 3 and Rule 5(8) of the Rules of the Supreme Court (Northern Ireland) 1980, which permitted it to treat the application as an appeal rather than as a renewed application for leave. Consequently, it granted the applicant leave to apply for judicial review and dismissed the appeal on its merits. It found that:

“Conflict emblems in a divided society where the emblems represent one view or the opposite view are by their nature divisive and have the potential to inflame those who do not agree with them. This must be so particularly where the divisions have led to years of violence, even though a period of relative calm has ensued. Many of those caught up in the conflict from both sides inhabit or have inhabited the prisons. Therefore it is necessary and reasonable that the prison service have a policy about the wearing of such emblems which forms part of its policy to prevent disorder within the prison system and which is uniformly applicable. Does the existence of a separated regime within the prison demand that a different policy be applicable in that regime? I do not think that it does. While the likelihood of contact between those with opposing views may be reduced in a separated unit, it cannot be excluded. Whether in a separated regime or not, there will always be contact with members of staff. The Equality Commission considered such conflict emblems had no place in a working environment and a prison should be no different. As part of its policy to prevent disorder the prison service are entitled to have rules relating to emblems which are applicable throughout the prison. As Girvan LJ stated in Re McCafferty’s Application this policy is soundly based.

The wearing of an emblem as a mode of expression is a small element of what Article 10 ECHR is designed to protect. The basic tenets of Article 10 are the rights to hold opinions and to impart and receive information and ideas. None of these matters are restricted by the prison policy. Prisoners are permitted to wear Easter Lilies in their cells. The only restriction is that they may not be worn in communal areas. That restriction in the context of Article 10 is a very minimal interference. It is entirely proportionate to the objective of preventing or maintaining good order in a prison.

Mr Hutton emphasised that in Re McCafferty’s Application Girvan J expressed the view that the arguments were finely balanced. He submitted that in those circumstances a change of emphasis in one argument should or could tilt the balance. I do not think the arguments are finely balanced. The case for an objective policy on emblems as part of the necessary aim to prevent disorder within a prison and which is applicable throughout the prison, including separated regimes, is substantial if not more so. In my view the policy which is minimally restrictive, complies with Article 10 of the Convention.”

9. On 10 April 2009 the applicant was advised by Counsel that he was unlikely to be granted leave to appeal to the Supreme Court. The applicant has not submitted a copy of Counsel’s advice to the Court as it was confidential and privilege was not waived in respect of it on the applicant’s behalf, save as to indicate that Counsel referred, inter alia, to the number of prisoners affected by the desire to wear the disputed emblem and advised that the case was not one where the test for leave to appeal was likely to be satisfied.

B. Relevant domestic law and practice

10. Paragraph 4.12 of the Northern Ireland Prison Service Standing Orders dated 3 July 1997 stated that:

“Prisoners may not wear emblems, nor should they be displayed by prisoners in their cells.”

11. On 15 March 2000 the Governor of HMP Maghaberry issued a notice to prisoners concerning the wearing of shamrock on St Patrick’s Day and poppies for Remembrance Day. The notice stated that:

“These emblems are non-political and non-sectarian and will, in future, be permitted to be worn at the appropriate time by any prisoners who wish to wear them.”

12. This notice echoes the guidance issued to employers by the Northern Ireland Equality Commission, which provided as follows:

“Personal Emblems

There are some individual emblems and symbols that, through their history and associations, and whether intended or not, have come to have a significance that has the potential to make those of a different identity feel uncomfortable or unwelcome.

In this category are likely to fall a variety of symbols and emblems with the potential to cause disharmony, and especially those that have been directly linked to community conflict in Northern Ireland and/or to local politics. These include:

• Badges and insignia, e.g. Easter Lilies, Orange symbols

... ... ...

There are many ways in which we convey our religious or political identity to others. In this category would fall emblems that may be associated primarily with one religion or community but are not directly linked to community conflict.

Such marks of identity are unlikely to be regarded as creating an intimidating or hostile working environment. There are many examples of such emblems, including:

• Marks of remembrance, celebration or commemoration (e.g. poppies, shamrock)”

13. The legality of the ban on wearing the Easter lily in Northern Ireland’s prisons has been challenged before the domestic courts on a number of occasions. In the case of In Re John Byers [2004] NIQB 23 the applicant had been charged with a disciplinary offence after he refused to remove an Easter lily. As the applicant was being held in an integrated prison, the High Court found that the ban on the wearing of Easter lilies in communal areas did not violate his rights under Article 10 of the Convention as the interference with his freedom of expression was prescribed by law and was necessary to prevent potential conflict within the prison.

14. The case of In Re McCafferty [2008] NIQB 96 was brought by an applicant who was being held in Roe House, the segregated wing of HMP Maghaberry. He brought judicial review proceedings after he was asked to remove an Easter lily on Easter Sunday and the thrust of his case was that there was a fundamental difference between the position of prisoners in the integrated part of a prison and those housed in the segregated regime. The Prison Service argued that the measures were justified by the imperative of minimising the distinction between integrated and segregated prisoners and preventing the development of paramilitary control. Moreover, they argued that there was a need to protect the rights of persons (other than prisoners) who could come into contact with a prisoner wearing an emblem and to ensure a neutral working environment for prison officers. The High Court concluded that the policy operated by the Prison Service was soundly based as it was entitled to ensure an objectively based system throughout the prison.

COMPLAINTS

15. The applicant complained that his rights under Article 10 of the Convention, his rights under Article 14 read together with Article 10, and his rights under Article 6 § 1 of the Convention had been violated.

THE LAW

1. Article 10 of the Convention

16. First, the applicant complained that the policy of the Prison Service, which prevented him from wearing an Easter lily, violated his right to freedom of expression. In particular, he complained that the wearing of an Easter lily was a way of expressing his political views and that the interference with his freedom of expression was not in pursuit of a legitimate aim or, in the alternative, that it was not necessary in a democratic society.

17. Article 10 of the Convention provides that:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

18. The Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. In particular, prisoners continue to enjoy the right to freedom of expression (Yankov v. Bulgaria, no. 39084/97, §§ 126-45, ECHR 2003‑XII, and T. v. the United Kingdom, no. 8231/78, Commission’s report of 12 October 1983, DR 49, p. 5, §§ 44-84). Any restrictions on this or any other right must be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment (see, for example, Nilsen v. the United Kingdom [2008] ECHR 1664 (27 November 2008), in which the confiscation of an autobiographical manuscript graphically describing a prisoner’s crimes was justifiable for the protection of health or morals and the protection of the reputation or rights of others, and Silver and Others, cited above, pp. 38-41, §§ 99-105, where broad restrictions on the right of prisoners to correspond fell foul of Article 8, but the stopping of specific letters containing threats or other objectionable references was justifiable in the interests of the prevention of disorder or crime).

19. There is no question, therefore, that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction.

20. In this regard, the Court notes that in the present case the domestic courts accepted that the policy of the Prison Service interfered with the applicant’s rights under Article 10 of the Convention. Having regard to the case of Vajnai v. Hungary, no. 33629/06, § 29, 8 July 2008, in which it held that the display of vestimentary symbols, albeit outside prison walls, fell within the ambit of Article 10, the Court agrees that the applicant’s decision to wear an Easter lily must be regarded as a way of expressing his political views.

21. As the applicant has accepted that the interference was prescribed by law, the principal questions for the Court to answer are whether it was in pursuit of a legitimate aim and whether it was necessary in a democratic society.

22. The Court notes that the primary justification for the interference advanced by the Government in the course of the domestic proceedings was the prevention of disorder and crime. They argued that the measure was necessary in integrated prisons to prevent violent disturbances between loyalist and republican prisoners. However, the measures were also necessary in segregated prisons as contact between segregated and other prisoners could not be entirely excluded. In addition, the Government submitted that segregated prisoners regularly came into contact with prison employees and guidance issued by the Equality Commission indicated that the wearing of political or sectarian emblems was not conducive to a neutral and harmonious working environment.

23. The Court readily accepts that the policy pursued the legitimate aim of the prevention of disorder and crime. This was not disputed by the applicant in the domestic proceedings. Moreover, insofar as the policy was designed to create a neutral working environment for prison employees and to prevent discrimination against “ordinary”, non-segregated prisoners, the Court accepts that the aim of the interference was to protect the rights of others, and was therefore also a legitimate aim under Article 10 of the Convention.

24. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).

25. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).

26. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, judgment of 25 November 1997, Reports 1997-VII, pp. 2547-48, § 51).

27. The Court further reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb; such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, § 57, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII). Although freedom of expression may be subject to exceptions, they “must be narrowly interpreted” and “the necessity for any restrictions must be convincingly established” (see, for instance, The Observer and The Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216,
pp. 29-30, § 59).

28. The Court recognises that in the present case the significance of the Easter lily will be relevant to any assessment of the necessity of the interference. It notes that in Northern Ireland many emblems are not simply an expression of cultural or political identity but are also inextricably linked to the conflict and can be viewed as threatening and/or discriminatory by those of a different cultural, political or religious background. Consequently, the public display of emblems can be inherently divisive and has frequently exacerbated existing tensions in Northern Ireland. Therefore, as cultural and political emblems may have many levels of meaning which can only fully be understood by persons with a full understanding of their historical background, the Court accepts that Contracting States must enjoy a wide margin of appreciation in assessing which emblems could potentially inflame existing tensions if displayed publicly.

29. The Court notes that the Easter lily was considered both by the Prison Service and the Equality Commission as a symbol which was inherently linked to the community conflict as it was worn in memory of the republican dead. It was therefore one of a number of emblems which was deemed inappropriate in the workplace and in the communal areas of Northern Ireland’s prisons. The Court recognises that the level of offence caused by a particular emblem cannot alone set the limits of freedom of expression (Vajnai v Hungary, cited above, § 57). However, it also recognises that in times of conflict, prisons are characterised by an acute risk of disorder and emblems which are more likely to be considered offensive are also more likely to spark violence and disorder if worn publicly. Consequently, the present case can readily be distinguished from that of Vajnai v Hungary, in which there was no evidence of a real or even remote danger that disorder would be triggered by the public display of the red star (Vajnai v Hungary, cited above, § 55).

30. Secondly, the Court notes that in the present case the scope of the interference complained of was relatively narrow as it applied solely to serving prisoners when they were outside their cells. Therefore, as long as the applicant remained in his cell, he was permitted to wear the Easter lily.

31. In view of the limited nature of the interference, the Court does not doubt that a restriction on displaying the Easter lily would be proportionate to the legitimate aim of preventing disorder or crime in an integrated prison, where violent paramilitary prisoners regularly come into contact with each other.

32. However, the Court finds that even in the present case, where the applicant was being held in a segregated wing, the measure was proportionate. First, the Court recalls that it could not be excluded that a prisoner in a segregated wing would come into contact with other prisoners and that this happened most frequently in the visiting hall. It would be expected that Easter Sunday and Easter Monday would be popular days for prison visits and it is therefore likely that there would be an increased chance of segregated prisoners coming into contact with other prisoners on those days. Secondly, the Court observes that the Equality Commission in Northern Ireland recommended that political or sectarian emblems should not be exhibited in the workplace so as to ensure that no worker would feel under threat on account of his or her religion or political opinion. Throughout the conflict in Northern Ireland, prison officers have routinely been targeted by paramilitaries. In particular, a significant number have been harassed, threatened, physically attacked and murdered by paramilitaries. The Court therefore accepts that prohibiting the wearing of emblems by paramilitary prisoners was necessary to ensure a working environment for them free of the insignia of either side directly linked to the conflict. Finally, the Court recognises that if the prison service were to permit segregated prisoners to wear emblems while integrated prisoners were prohibited from doing so, such a policy could potentially raise an issue under Article 14 read together with Article 10.

33. Therefore, in view of the relatively minor interference with the applicant’s Article 10 rights, the Court finds that the reasons adduced by the State to justify the interference were relevant and sufficient and that the interference complained of was proportionate to the legitimate aims pursued. Accordingly, the Court finds the complaint under Article 10 of the Convention to be manifestly ill-founded. It should therefore be rejected under Article 35 §§ 3 and 4 of the Convention.

2. Article 14 read together with Article 10

34. The applicant complained that he was discriminated against when compared to others wishing to wear political symbols connoting a different political ideology. In particular, he complained that he was treated differently from prisoners who wished to wear a poppy in remembrance of those members of the armed forces who died in conflict, as the poppy was associated with the unionist community in Northern Ireland.

35. Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

36. In the present case, the Court has already found that the facts complained of fell within the ambit of Article 10 of the Convention. It therefore considers that it must examine separately the complaint under Article 14.

37. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 ( Kjeldsen, Busk Madsen and Pedersen, cited above, § 56). Moreover, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008‑). Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (Burden, cited above, § 60). However, the scope of this margin will vary according to the circumstances, the subject-matter and the background.

38. In the present case the Court recalls that the Prison Service policy reflected that of the Fair Employment Commission, which differentiated between the Easter lily and the poppy on the basis that the Easter lily was an emblem directly linked to the community conflict over the past 30 years whereas the poppy was an emblem which distinguished one community from the other in Northern Ireland but was not directly connected with the conflict.

39. As indicated above, the Contracting States must enjoy a wide margin of appreciation in assessing which emblems could potentially inflame existing tensions if displayed publicly and which should not. Accordingly, the Court accepts the domestic court’s finding that prisoners wishing to wear a poppy on Remembrance Sunday were not in an analogous position to the applicant. It therefore finds the complaint under Article 14 read together with Article 10 of the Convention to be manifestly ill-founded and would reject it under Article 35 §§ 3 and 4 of the Convention.

3. Article 6 § 1

40. Finally, the applicant complained that there had been a violation of his rights under Article 6 § 1 of the Convention as the Court of Appeal decided, without notice, to consider the merits of his application immediately after granting leave to apply for judicial review. Consequently, the applicant complained that he had lost the right to make submissions on the merits of the application.

41. Article 6 § 1 of the Convention provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

42. In applying the procedure under Order 53 Rule 3 and Rule 5(8) of the Rules of the Supreme Court (Northern Ireland) 1980 the Court of Appeal noted that all of the material relied upon was before it. In his application to this Court, the applicant has not suggested that this assertion was incorrect. In particular, the Court observes that he has not pointed to any evidence which he was prevented from relying on. Consequently, the Court considers that he has failed to substantiate his claim that the hearing was in any way unfair.

43. However, even it the Court were to accept that the applicant was prejudiced by the decision to apply the “rolled-up” procedure, it is not satisfied that the applicant has exhausted domestic remedies in respect of this complaint. In particular, the Court notes that as the applicant did not submit a copy of Counsel’s advice (see paragraph 9 above), there is nothing to indicate that the applicant or his representatives ever considered challenging the Court of Appeal’s decision on grounds of procedural unfairness.

44. The Court therefore finds the complaint under Article 6 § 1 of the Convention to be inadmissible for failure to exhaust domestic remedies and would reject it under Article 35 § 1,3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Lawrence EarlyLech Garlicki             
RegistrarPresident

 

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