No human right to an hour’s minimum in the open air for “lifer” – Court of Appeal

20 December 2011 by

Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538 – Read Judgment

The Court of Appeal has decided that a failure to provide a life sentence prisoner with a minimum of one hour in the open air each day did not constitute a breach of his human rights under Article 8 of the European Convention of Human Rights (“ECHR”).

Oliver Sanders of 1 Crown Office Row represented the Secretary of State in this case. He is not the author of this post.

Between 26 April and 2 October 2007, a period of 159 days, Mr Leslie Malcolm was detained in the Segregation Unit at HMP Frankland. During that time, he was provided with an average of 30 minutes in the open air each day. However, paragraph 2(ii) of Prison Service Order 4275 (“PSO 4275”), which contained policy guidance for prison officers operating under the Prison Rules 1999, stated that he should have had the opportunity to have at least one hour each day in the open air.

When Mr Malcolm first brought his claim, he complained that not only had his human rights under the ECHR been infringed, but also that the prison officers at HMP Frankland were liable for misfeasance in a public office. Both aspects of the claim were rejected by Sweeney J at first instance, and it was only the human rights question that was considered on appeal.

The judgment of Richards LJ, in leading a unanimous Court of Appeal, is an elucidating one insofar as it breaks down and draws attention to the various questions which need to be addressed when a human rights claim under Article 8 is brought.

Firstly, it needs to be determined whether the act being complained of impacted upon an interest which falls within the scope of the right. This might be called the “scope question”.

In this case, Mr Malcolm pointed out that Article 8 is a very broad right (a point which has often been made in posts on this blog), and that it encompasses expansive and rather amorphous concepts such as a person’s “physical and psychological integrity” (Pretty v United Kingdom (2002) 35 EHRR 1 at [66]) and “personal autonomy“ (R (Wood) v Commissioner of Police of the Metropolis [2010] 1 WLR 123 at [21]-[22]). He said that the ability to exercise was integral to his personal autonomy and well-being, particularly in the context of life in the segregation unit of a prison.

Richards LJ accepted at [26] that the claim fell within the scope of Article 8:

Without attempting elaborate discussion of the point, I am prepared to accept in general terms that enjoyment of exercise in the open air is capable in principle of constituting an interest protected by article 8 and that it may have a particular significance in the context of prison life and all the more so in the context of solitary confinement in a segregation unit.

The next question to be considered was whether or not there had been an interference with the interest that had been determined to fall within the scope of Article 8(1) – in this case the interest in exercising in the open air. This might be called the “engagement question”. As a matter of general principle, the engagement of a right under the ECHR requires that an interference crosses a minimum threshold of seriousness (see Costello-Roberts v United Kingdom (1995) 19 EHRR 112 at [36]).

On this point, the Secretary of State clearly had more arguments to deploy. Whilst Mr Malcolm sought to emphasise that he was upset by being repeatedly denied the full hour of exercise he had applied for, the Secretary of State pointed out that:

  1. Mr Malcolm had been able to exercise on the days that he had made an application, at least for 30 minutes and frequently longer.
  2. Article 8 did not have such specific content so as to provide that a prisoner was entitled to 60 minutes rather than 30 minutes, and it could not be given that content by means of a policy decision taken by the Secretary of State, which was subject to change from time to time. (In this respect, it is notable that following the first instance decision, PSO 4275 was replaced by Prison Service Instruction 10/2011, which provides that prisoners are afforded a minimum of 30 minutes in the open air daily, subject to weather conditions and the need to maintain good order and discipline.)
  3. Sweeney J at first instance found that Mr Malcolm had suffered no adverse physical or psychological effects as a result of the way in which his outdoor activities had been limited.
  4. Mr Malcolm had made a conscious choice to remain on the Segregation Unit at HMP Frankland by refusing to move to any other prison wing. This was part of his plan to have himself transferred to another prison – a venture in which he was ultimately successful. Had Mr Malcolm agreed to go on normal location at the prison, there would have been no difficulty in ensuring that he received at least an hour in the open air each day. In this way, any interference was of his own making (this argument had been deployed and accepted in McFeeley v United Kingdom (1980) 3 EHRR 161).

These points were endorsed by the Court of Appeal, and its resolution of the engagement question in this way effectively disposed of the appeal. Nevertheless, Richards LJ went on to consider what the position under Article 8(2) would have been if there had been a sufficiently serious interference with Mr Malcolm’s rights under Article 8(1).

Article 8(2) contains two broad requirements that a prima facie interference with a Convention right must comply with in order not to be unlawful:

  1. The interference must be in accordance with the law.
  2. It must be necessary in the pursuit of a legitimate aim such as national security, or the prevention of disorder or crime.

The requirement that an interference be in “accordance with the law” is often dealt with swiftly in human rights claims, because the public authority in question can normally point to a statutory provision which provides it with the power to take the action it has taken e.g. the power contained in section 3(5) of the Immigration Act 1971 to deport non-citizens on the ground that their presence in the UK is not conducive to the public good. In this case, however, the matter was examined in greater detail, with the Court of Appeal taking a more rigorous approach to what this requirement actually means in the context of domestic principles of public law.

Richards LJ explained that PSO 4275 was a published policy to guide the exercise of prison officers’ discretion under rule 30 of the Prison Rules 1999. That policy was not complied with. On that basis, the Secretary of state had acted unlawfully in failing to follow his own policy, unless he could provide good reasons from departing from it. This followed from the recent Supreme Court decision in R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671, in which it was decided in the immigration context that a failure to review an immigration detainee’s detention in accordance with policy rendered that detention unlawful.

He went on to say at [32]:

When determining whether an interference is “in accordance with the law”, even the Strasbourg court looks at domestic law (see, for example, Eriksson v Sweden (1989) 12 EHRR 183 at [62]-[63]); a fortiori the national court must look at domestic law when deciding whether the requirement is satisfied; and I can see no possible basis for contending that the principles of public law do not form part of domestic law for this purpose.

The Secretary of State argued that there were sound operational reasons for departing from the policy, such as the limited exercise space, the need for proper supervision and the number of prisoners held on the Segregation Unit at particular times. However, Richards LJ rejected this because he said that there was no evidence that any consideration had been given to whether or not the exercise facilities could be altered or extended so that the policy could be complied with. Without such consideration having taken place, those reasons took on the appearance of unverifiable excuses.

The court then dealt much more swiftly with the second question, which normally commands much more of the court’s time as it engages with the difficult but increasingly ubiquitous doctrine of proportionality. Mr Malcolm argued that because there was no good reason for departing from the one hour policy contained in PSO 4275, it could not be demonstrated that the interference was a proportionate means of achieving any legitimate purpose. Richards LJ merely observed that had the operational reasons relied upon by the Secretary of State been successfully made out, he would have considered them as indicating that the interference was proportionate.

Although this was a private law claim for redress, the observations of the Court of Appeal on the requirements of Article 8(2) are a timely reminder of the different ways that human rights law and the other public law principles of judicial review interact. Most straightforwardly, a human rights infringement is a well-recognised independent ground of judicial review. However, other principles of judicial review may also come into play when determining whether or not a human rights infringement has taken place. This is because in order for a public authority to act “in accordance with the law”, (or in a way that is “prescribed by law”) it must act both within the confines of its statutory powers, and in accordance with other public law principles such as the requirement to provide reasons for decisions, the requirement to consult, and the requirement to act in accordance with policy unless there is a good reason for departing from it.

As noted above, similar questions were considered in Lumba, and also in the more recent case of R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, which was the subject of a previous post. In those cases, the Supreme Court was considering whether or not a failure to comply with various requirements set out in policy documents could render the detention of foreign national prisoners unlawful. If the detention was unlawful, then it would naturally be in breach of Article 5 of the ECHR. The Supreme Court emphasised that in order for the detention to be unlawful, the error being complained of had to be sufficiently closely linked to the detention so as to have some bearing on it.

This principle was not explicitly cited by the Court of Appeal in Mr Malcolm’s case although it would arguably be sensible for it to apply to cases involving other human rights. On this reasoning, in order for a particular act to constitute a rights infringement on the ground that it is not in accordance with the law, the public law error which is being cited must be sufficiently closely linked with that act in order to make it unlawful.

The facts of Mr Malcolm’s case came within this limiting principle: he complained that his rights were interfered with because he received less than 60 minutes of outdoor exercise each day, and this occurred because the policy, which provided for that length of time, had been improperly departed from. However, the conclusion of the Court of Appeal on the “in accordance with the law” criterion might have been different if Mr Malcolm had complained that the decision to give him only an average of 30 minutes each day was unlawful because e.g. the policy provided for such decisions to be taken by the Prison Governor, when in fact it had been taken by a Prison Officer. Such an error would arguably have had no bearing on the substance of the decision as to his allotted exercise time.

Were such a limitation not to apply, then the ramifications of this decision could be very broad indeed.

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1 comment;


  1. We seem to be drifting into a Human Rights desert in the UK. This type of judgment is appalling. It reminds me of the famous quote ending in “and then they came for me and there was no-one left to protest”

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