Confiscation of rape prisoner’s family photos not breach of right to family life

3 November 2010 by

Broom v Secretary of State for Justice [2010] EWHC 2695 (Admin) – Read Judgment

When he was transferred from Whitemoor prison to Wakefield Prison in May 2008, Mr. John Broom had 24 historical photos of his children and nieces confiscated. He had been in possession of those photographs for 18 years. He challenged the decision not to return the photos to him by way of judicial review, claiming that it breached his right to respect for his private or family life. Mr Justice Behrens concluded that there was no infringement of Article 8 of the ECHR in this case.

Mr. Broom is currently serving a discretionary life sentence following his conviction in 1992 for buggery and rape of a female. There were two females involved, one of whom was 16. The nature of this conviction was central to the decision to withhold Mr. Broom’s photographs. The Safeguarding Children Panel said that:

Evidence of your current conviction suggests you have a sexual interest in children, and so allowing you access to material, the photographs, which may fuel this interest, could be detrimental to public protection. Your OASys document dated May 2009 assesses you as posing a high risk of general reconviction. The risk matrix assessment indicates that you present a high risk of sexual reconviction. You are currently assessed as posing a high risk of serious harm to children, the public, a known adult in the community, and a medium of serious harm to children in custody.

The Panel also took into account:

[T]he risks that arise within the prison setting, in particular the fact that HMP Wakefield is part of the high security estate, houses a large number of sex offenders, many of whom have been convicted of offences of children. With a large number of child sex offenders located together, there is a risk of photographs of children being shared among offenders. Accordingly, the panel was concerned to ensure that individuals entrusted with such photographs would not become involved in such activities.

In regards to the human rights issues in the case, there was no real dispute on the law to be applied. When considering the question of an infringement of Article 8 of the ECHR, the Judge looked at the series of questions set out in the House of Lords case of Razgar [2004] UKHL 27. The Judge must firstly decide whether there has been an interference with Article 8 rights that is sufficiently serious so as to engage the protection of the article. On this point Mr. Broom emphasised that these cherished photos were all he had left of a family he once had. Although he possessed some up-to-date photographs, his family had now become like strangers to him because he had not seen them grow up for so long. Counsel for the Secretary of State noted the limited consequences of the decision: it did not prevent family visits or the possession of up-to-date photographs, and if the risk assessment changed, then the decision could be revisited.

The judge said this was a “marginal decision”, but ultimately decided that if there had been an interference with Article 8 rights, then it had not been sufficiently serious to engage the article. This removed the need to consider the remaining questions set out in Razgar, but to account for the possibility that he was wrong, he indicated his view on the proportionality of the decision. Although the risk of harm to children which Mr. Broom posed was not precisely specified, the Judge considered that:

…the removal of the photographs is proportionate in the light of the general risk to children, and also the possibility of networking.

When it comes to the rights of convicted criminals, the operation of the Human Rights Act has frequently been criticised. In 2004, then Shadow Home Secretary David Davis said the act had given rise to “too many spurious rights“, and that “all to often it seems to give criminals more rights than the victims”. In 2007, David Cameron (as opposition leader) called for the Act to be scrapped altogether. To those who use “rights culture” as a pejorative term, a decision such as this may be a source of relief.

Yet there is a real argument to be made that the judge was wrong in this case, both as to the gravity of the interference with Mr. Broom’s Article 8 rights and as to proportionality.

It might be said that the possession of historical photographs could not meaningfully contribute to any current family life Mr. Broom had with his family members, and therefore their confiscation could not be serious enough to engage Article 8. Yet one of the key joys of family life is the shared history and memories attendant upon it. In prison, such photographs may be the only way of revisiting such memories, and without them, an important part of one’s family life is significantly diminished. I would be devastated if my old family photographs were lost, and I am in the happier position of being able to reminisce with my loved ones as and when I choose. In this “marginal” case, the judge came down on the wrong side of the line.

The proportionality point is also finely balanced. On the one hand, as Mr. Broom’s 1992 conviction involved a girl of 16, it seems unfair to cast him as a paedophile, and the offences did not involve his own children. In these circumstances, it might seem difficult to see how having his photographs, which were entirely appropriate in nature, could fuel a sexual interest in children, or understand why he would choose to expose his children’s photos to other child sex offenders in Wakefield prison. No specific evidence was advanced on these matters. On the other hand, as the Judge noted, upon his transfer to Wakefield in May 2008, Mr. Broom was assessed by the Safeguarding Children Panel as posing a high risk of serious harm to children. This general risk is serious in nature, and Mr. Broom had not undertaken any relevant prison courses to mitigate this risk.

The Judge considered that the general risk was sufficiently serious to warrant the action taken. But his decision could be argued to have taken insufficient account of the fact that the risk being assessed in this case is in respect of people who are already in prison. Any risk posed to children by someone who had sight of the photographs may be significantly diminished by that fact alone, although clearly there were concerns about “trade” in photographs of children among child sex offenders in certain prisons. The decision of the Panel seems to have proceeded on the basis that Mr. Broom (or some other person who might see the photographs) is likely to be imminently released. The judgment does not show that any evidence was heard on this matter, and indeed in Mr. Broom’s case (although perhaps not that of at least some of his fellow prisoners) the very risk assessments which informed the Panel’s decision suggest that release is unlikely.

Although the legal approach to the alleged breach of Article 8, based on the test in Razgar, may be unimpeachable, the outcome nevertheless could be suggested to be rather harsh.  Mr. Broom has spent a very long time in prison for committing a heinous crime. Consequently, his family life has largely evaporated. In the absence of more solid evidence that his possession of the photographs gave rise to a specific risk of harm to children, or a risk of illicit photo-sharing, it may be thought to be unnecessarily severe to deny him his family photos.

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