Shamrocks and Poppies Allowed, but Easter Lilies Likely to Aggravate

Donaldson v the United Kingdom - 56975/09 [2011] ECHR 210 (25 January 2011) Summary

A majority of the European Court of Human Rights declared that an application concerning a ban on all prisoners in Northern Ireland wearing emblems with a political or sectarian connotation outside of their prison cells was inadmissible.

Facts

The applicant was an Irish national serving a 12-year sentence in a prison in Northern Ireland.  At all material times, he had been held in a wing of the prison that was segregated from other prisoners in order to safely hold republican prisoners. Prisoners held in this wing of the prison only came into contact with other prisoners in the visiting hall.

Under the Northern Ireland Prison Service Standing Orders, prisoners were not permitted to wear emblems, or display emblems in their cells, that had a political or sectarian connotation. Exceptions were made in relation to the wearing of the shamrock on St Patrick’s Day and the wearing of poppies on Remembrance Day on the basis that these emblems were “non-political and non-sectarian” if they were worn at the appropriate time.

On Easter Sunday in 2008, the applicant affixed an Easter lily to his clothes. The Easter lily commemorates Irish republican combatants who died or were executed following the Easter Rising in 1916. He was asked to remove the Easter lily by a prison officer. The applicant refused to do so. He was charged and subsequently found guilty of disobeying a lawful order. The applicant was required to spend three days confined in his cell as punishment for his disobedience.

The applicant subsequently applied for leave to have the standing order examined by way of judicial review.  He argued that the standing order was a disproportionate interference with his rights under Article 10 of the European Convention on Human Rights (‘ECHR’) to freely express his religious beliefs and cultural identity. He submitted that the standing order was disproportionate because there was no risk he would come into contact with anyone who found the Easter lily offensive on account of him being held in the segregated wing. Relying on Article 14 of the ECHR, he also submitted the standing order was discriminatory because it differentiated between prisoners wishing to wear poppies or shamrocks and those who wanted to wear the Easter lily.

The High Court of the United Kingdom refused the application on the basis that the standing order was proportionate to the aim of maintaining good order in the prison, and was not discriminatory. On appeal, he was granted leave to apply for judicial review. His application was considered on the merits but it was ultimately dismissed. The applicant subsequently applied to the European Court of Human Rights (the ‘Court’) on the same grounds, with the additional claim that his rights under Article 6 (the right to a fair trial) of the ECHR had been infringed. The applicant’s claim under Article 6 related to the fact that merits of his application was heard immediately after his application for leave to apply for judicial review.

Decision

Article 10

The Court found that the applicant’s decision to wear the Easter lily was an expression of his political beliefs and that this freedom was restricted by law. The Court also found that the standing orders pursued the legitimate aim: the prevention of disorder and crime, and the creation of a neutral working environment for prison employees.

The Court also had to consider whether the restriction was necessary in a democratic society.  In order to make this assessment, the Court had to examine the significance of the Easter lily. The court stated that a wide margin of appreciation had to be given to the United Kingdom in this instance as they were better placed to make this assessment. Nonetheless, the Court found that there was evidence that the Easter lily was widely recognised in Northern Ireland as being linked to the conflict between republicans and unionists and therefore was likely to be inherently divisive and was more likely to exacerbate existing tensions and spark violence and disorder.

The Court found that in an integrated prison, where paramilitary prisoners often came into contact with each other and that restricting the display of the Easter lily was proportionate to the legitimate aim of preventing disorder and crime. However, even in a segregated wing, as was the case in this application, the restriction was proportionate because it was possible for segregated prisoners to come into contact with other prisoners. Further, the restriction ensured prison employees did not feel threatened, especially considering the history of paramilitary prisoner violence against prison employees. Finally, if prisoners in segregated prisons were allowed to wear particular emblems while integrated prisoners were not, such a policy could raise issues under Articles 10 and 14.

The Court concluded that the standing orders were relevant and sufficient and that the interference complained of was proportionate to the legitimate aims pursued. The Court dismissed this aspect of the applicant’s claim as manifestly ill-founded.

Article 14 read together with Article 10

The Court found that although prisoners were allowed to wear emblems such as the poppy and the shamrock at the appropriate times, these emblems were not comparable to the Easter lily as they were not likely to inflame existing tensions. To this end, the Court accepted the domestic court’s finding that the Easter lily was an emblem directly linked to the conflict between republicans and unionists in Northern Ireland. The Court found that a certain margin of appreciation was required in assessing what could potentially inflame existing tensions in each contracting state and whether, and to what extent, such differentiation was permissible.

Article 6

The Court found that the applicant’s complaint under Article 6 was not admissible because he had failed to exhaust domestic remedies such as a challenge to the application based on procedural fairness.

Relevance to the Victorian Charter

Under section 7(2) if the Charter, a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including those listed in the Charter. This case provides an example of how a limitation on a right can be reasonable and justified in a particular context.

The decision is at: www.bailii.org/eu/cases/ECHR/2011/210.html

Meg O’Brien is a lawyer with Mallesons Stephen Jaques on secondment to the Human Rights Law Resource Centre