Prisoner wage deductions for work outside prison do not breach of human rights

S & Anor, R (on the application of) v Secretary of State for Justice [2012] EWHC 1810 (Admin) (3 July 2012)

Summary

The England and Wales High Court has held that a discretion held by prison governors to levy deductions from a prisoner’s earnings where the prisoner is working for a private employer on a release scheme outside prison is not incompatible with their human rights having regard to the margin of appreciation afforded to States.

Facts

This case concerned two claims for judicial review of two Prison Service Instructions (PSIs) issued by the Secretary of State for Justice to governors of prisons which conferred discretion on prison governors to levy deductions from a prisoner’s earnings where the prisoner was working for a private employer on a release scheme outside prison. The deductions could be of an amount up to 40 per cent of the excess of weekly wages above £20 and were paid to Victim Support, a body providing support for victims of crime. The policy was that governors should make deductions at the full 40 per cent rate, subject only to a narrow class of exemption in “exceptional” or “very exceptional” circumstances.

The claims were brought by S, a male prisoner and KF, a female prisoner. Both parties submitted that the PSIs were unlawful on the grounds that they violated article 1 of Protocol 1 (A1P1) (protection of property) of the European Convention on Human Rights as incorporated into domestic law.

Further, KF submitted that the PSIs violated:

Article 7 of the Convention (no punishment without law) because they had the effect of imposing a heavier penalty than the one applicable at the time KF’s criminal offence was committed; and
Article 14 of the Convention (prohibition of discrimination) because although on their face the PSIs were applicable equally to men and women in prison, in practice they had an excessive and disproportionate detrimental impact on women.

The claimants also submitted that the PSIs coupled with such a narrow class of exemption was an intrusive interference with prisoners’ rights under the Convention. They submitted that in order to be lawful, the PSIs should allow prison governors a much greater discretion to respond to the individual circumstances and needs of prisoners.

Decision

The Court dismissed the challenges to the PSIs on all grounds. The reasons for its decision are as follows:

In regards to the exercise of discretion by the prison governors, his Honour considered that from the evidence, it appeared that prison governors were prepared to consider requests by prisoners for a waiver of levy based on the circumstances and merits of their personal situation. For example, S was granted a partial exemption from the full effect of the levy, to assist him with fuel costs associated with running his car. On this basis, his Honour concluded that the prison governors did not treat the PSIs as having the practical effect of eliminating substantially all discretion in deciding whether the full 40 percent levy should be deducted from prisoner earnings.
As to the challenge based on A1P1 and the claim that the PSIs interfered with prisoners’ “possessions” in the form of money earned by them, his Honour found that the deductions from prisoners’ wages were analogous to a tax to be levied on them for the purpose of securing funding for the support of victims of crime. His Honour noted that the Strasbourg case law indicates that a State is afforded a wide margin of appreciation under A1P1 in setting rules in contexts which call for broad social and economic judgements – in other words, the European Court of Human Rights will only find that the State has acted in violation of A1P1 if it proceeded on the basis of a judgment in relation to action taken to promote legitimate public interest which was “manifestly without reasonable foundation”. In this case, his Honour’s view was that a reasonable relationship of proportionality between the means employed and the aim sought to be realised and that a fair balance was struck between the general interests of the community and the requirements of the protection of the individual prisoners’ fundamental human rights. Accordingly, he held the PSIs did not violate A1P1.
In coming to the above conclusion, his Honour rejected the claimant’s submission that the international doctrine did not apply in domestic proceedings. His Honour considered domestic courts are required to “take into account” the case law of the Strasbourg Court and thus concluded the margin of appreciation should be applied.
His Honour also rejected the submission that the deduction regime breached article 7 by imposing a heavier penalty than one that was applicable at the time of the offence. His Honour found that there was no connection between the offence committed and the application of the deductions regime, nor did the regime have elements which indicated that it was punitive in its object or effect. His Honour stated that: “It is not because of his commission of his offence that a prisoner becomes subject to the deductions regime … rather, it is because he makes a choice when in prison to seek work on release from prison that the deduction regime will be applicable to him.”
His Honour also rejected the submission that the PSIs breached article 14 because they apply the same deductions regime to men and women without considering the special needs of women. His Honour found there was no discrimination but rather “the impact in any individual case will depend upon the particular circumstances of that case, and it is difficult to generalise … to say that female prisoners … are more likely than male prisoners … to be detrimentally affected by application of the deductions rules.”

Commentary

Discussion of the “margin of appreciation” afforded to States formed a significant part of his Honour’s decision. In particular, cited in this judgment was Laws LJ in the Court of Appeal in SRM Global Fund LLP v Commissioners of HM Treasury [2009] EWCA 788. In that case, Laws LJ stated that the margin of appreciation available to the legislature in implementing social and economic policies should be a “wide one” that “will respect the legislature’s judgement as to what is ‘in the public interest’ unless that judgment be manifestly without reasonable foundation.” The reason for this being that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be compatible with the protected human rights.

Essentially, the doctrine respects the elected arms of government and arguably Australia’s separation of powers. Accordingly, the margin of appreciation doctrine may inform decisions relating to matters of discretion and public policy when interpreting rights under the Victorian Charter.

The decision is available online at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1810.html

Katherine Barrie is a seasonal clerk at Lander & Rogers.