No right for prisoner to wear Easter lily

10 February 2011 by

The recent critics of Strasbourg judicial activism will, doubtless, be pleased by the Court’s latest Article 10 decision.  Free speech campaigners may have more mixed views.

In the case of Donaldson v United Kingdom ([2011] ECHR 210) the Fourth Section held that the application of a serving Republican prisoner alleging a violation of his rights under Article 10 (freedom of speech) and Article 14 (discrimination) was inadmissible.

The facts were simple. 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 the prison where the applicant was held there was an exception for 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.

On Easter Sunday, 23 March 2008, the applicant wore an Easter lily 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 it and when he refused he was charged and subsequently found guilty of disobeying a lawful order under the Prison and Young Offenders Centre Rules (Northern Ireland) 1995.  He was given three days of cellular confinement by way of punishment.

The applicant’s domestic claim for judicial review failed.  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 (see Re John Byers [2004] NIQB 23 and In re McCafferty [2008] NIQB 96).  The applicant complained to the Court of Human Rights that his Article 10 rights and his rights under Article 14, taken with Article 10, had been violated.

The Court noted that the Easter lily was considered as a symbol “which was inherently linked to the community conflict” and was, therefore, deemed inappropriate in communal areas of prisons.   It said that while the level of offence caused by a particular emblem cannot alone set the limits of freedom of expression there was an acute risk of disorder in prisons in times of conflict.   It distinguished the case of Vajnai v Hungary – where the conviction for wearing the “totalitarian symbol” of a red star was a violation (see the discussion on the ECHR Blog here) because there was no evidence of a risk of disorder in that case [29].

The Court also noted that the interference was relatively narrow as it applied solely to serving prisoners outside their cells. As a result, the Court held that a restriction on displaying the Easter lily was proportionate to the legitimate aim of preventing disorder or crime even though the applicant was being held in a segregated wing. It relied on the fact 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.

The Article 14 complaint was dismissed because that prisoners wishing to wear a poppy on Remembrance Sunday were not in an analogous position to the applicant.

Article 10 cases involving the United Kingdom are relatively rare – usually only two or three judgments a year.  This is the second such case in 2011.   The result is unsurprising, particularly bearing in mind the views of the Equality Commission and the obvious sensitivity of “political symbols” in the Northern Ireland context.  Despite the complaints of domestic critics – not just in the United Kingdom – the Court of Human Rights is sensitive to local conditions and issues in Member States.

This post first appeared on the Inforrm Blog, and is reproduced with permission and thanks.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: