Prisoners’ Right to Privacy: Claim for Access to Family Photographs Rejected

Broom v Secretary of State for Justice [2010] EWHC 2695 (Admin) (03 September 2010)

The England and Wales High Court has held that the decision of a prison authority to deny a prisoner access to photographs of his children did not engage that prisoner’s right to privacy.

Facts

Mr Broom sought judicial review of a decision made by the Safeguarding Children Panel (‘Panel’) to withhold 24 photographs of his children and nieces who were minors when the photographs were taken.  Mr Broom had been allowed to keep the photographs in prison for 10½ years.  However, in 2008 he was transferred between prisons and assessed by the Panel as posing a high risk of reconviction and serious harm to children.  The prison authorities withheld the 24 family photographs from Mr Broom, and the Panel affirmed the decision to do so.

The Panel considered that:

• Only one of the individuals in the photograph had provided their consent for Mr Broom to have the photographs.
• Mr Broom’s crime suggests a sexual interest in children, and allowing access to the photographs may fuel his sexual interest in children.  (Mr Broom was convicted of rape and buggery of a female.  There were two female victims: one aged 19 and another aged 16, and therefore a child.)
• Mr Broom was assessed as posing a high risk of reconviction, serious harm to children, the public and an adult in the community, and a medium risk of serious harm to children in custody.
• Mr Broom denies his guilt, so cannot take steps to reduce his risk of re-offending.
• Mr Broom is detained among a large number of sex offenders, and there is a risk that the photos will be shared.

It was accepted that the photographs were historical – all of the children depicted are now adults – and of an appropriate nature.  Social services and the probation service were content for Mr Broom to have the photographs, and the National Society for the Prevention of Cruelty to Children did not object, although the police did.

Mr Broom gave evidence that the photographs ‘are his memories and mean the world to him’. Although he has some other up-to-date photographs of his family, they are like strangers because he had not seen them for so long.  The withheld photographs are ‘all he has left of memories of family he once had’.  Mr Broom had not offended against his own children, and there was no evidence that he had used the photographs for improper purposes.

Decision

Mr Broom challenged the Panel’s decision on the basis that it breached his art 8 right to respect for his private and family life, and also on traditional grounds of judicial review.

Justice Behrens applied the following test from Razgar [2004] UKHL 27 to determine whether Mr Broom’s art 8 right had been infringed.

• Is the decision an interference by the defendant with the exercise of the claimant’s right to respect for his private or family life?
• If so, will such interference have a consequence of such gravity as potentially to engage the operation of art 8?
• If so, is such interference in accordance with the law?
• If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights or freedoms of others?
• If so, is such interference proportionate to the legitimate public ends sought to be achieved?

Justice Behrens held that the Panel’s decision involved limited restrictions, which are not of such gravity to engage the operation of art 8, although it was a ‘marginal decision’.  Specifically, he noted that the decision does not stop Mr Broom’s family from visiting or prevent Mr Broom from keeping photographs of his family as adults.

In the event that his assessment is wrong, Justice Behrens answered ‘yes’ to the remaining three questions in Razgar. In particular, he considered that withholding the photographs from Mr Broom was ‘proportionate in the light of the general risk to children, and also the possibility of networking’.

Mr Broom’s application for judicial review on traditional grounds was also unsuccessful.

Relevance to the Victorian Charter

This decision is relevant to the right to privacy under s 13 of the Charter.  Like in the UK, the Supreme Court of Victoria has accepted that a prisoner’s human rights remain in tact, notwithstanding the fact that they are in custody: Castles v Secretary to the Department of Justice [2010] VSC 310.  However, Behren J’s decision sets the bar for prisoner privacy low.  The decision has been criticised due to the lack of solid evidence that the photographs posed a real risk of harm to children or illicit photo-sharing, and for failing to acknowledge that, in prison, family photographs may be the only way of revisiting shared family memories.

The decision is at www.bailii.org/ew/cases/EWHC/Admin/2010/2695.html.

Melanie Schleiger is a Senior Lawyer in the Civil Justice Program at Victoria Legal Aid, and a Board member of the Human Rights Law Resource Centre