EHRM, 02-03-2010, nr. 52990/08

The applicant served a sentence of twelve years' imprisonment for offences relating to the importation of drugs, from which he secured early release in September 2009. The applicant has a long-term girlfriend who has a child from a previous relationship. He also has an adult son from a previous relationship. Whilst in prison, he kept in contact with these and other family members by telephone.

As a prisoner, the applicant's earnings were limited. He earned on average about GBP 10 a week. Prisoners can only make telephone calls if they have credit on their prison pin account.

On 31 January 2006 the applicant submitted a complaint to the Prison Ombudsman that the charges for telephone calls made from prisons were not equivalent to those made from payphone boxes in the community.

On 23 August 2006 the Ombudsman upheld the applicant's complaint and recommended that the Prison Service reopen negotiations with British Telecom (‘BT’, their telephone communications provider) over the cost of prison telephone calls, ‘with a view to reducing the tariff so that prisoners are not penalised for making longer calls.’

In his consideration of the applicant's complaint, the Ombudsman made the following observations; Firstly, he noted that the cost of a telephone call from a prison telephone was higher than the cost of a call from a public payphone if the call lasted more than two minutes and 45 seconds. In particular, if a prisoner were to make a 15 minute telephone call it would cost him/her over five times more from a prison telephone compared to a public payphone. It was further remarked that the Prison Service had entered into a contract with BT in 1999 for the provision of telephone services to prisoners. The contract was awarded following a tendering process. The invitation to tender had required that prisoners should not be charged above public payphone rates and the contract itself had also stated that prices would be kept to the public payphone level. Moreover, the contract identified that a commission would be paid by BT to the Prison Service on the sale of all telephone credits to prisoners.

The difference in charges had first arisen in October 2000 when BT decided to increase the minimum charge for using a public payphone from 10 pence to 30 pence. The Prison Service wished to retain a 10 pence minimum charge and thus decided to agree to a different regime of call charges to that applied in the community. The deviation between the charging system in prisons and public payphones had since increased owing to more competitive public pricing.

The change in the contract appeared to have been confirmed in a Change Control Note between the Prison Service and BT dated June 2004. It further appeared that there was no tendering process adopted at this or any other time since the deviation in charging rates. Figures obtained by the Ombudsman's investigator suggested that prisoners lost significant amounts of money as a result of their not being charged public payphone rates for making telephone calls. In the applicant's case, he had lost GBP 83.82 per annum as a consequence of being required to pay more than public payphone rates. This represented over two months' earnings for the applicant.

The Ombudsman also highlighted that no impact assessment had been undertaken of the effect on prisoners of the decision that charges for prison telephone calls should deviate from those for public payphones. The information obtained in the course of the Ombudsman's investigation suggested that the average length of a prisoner's call was between two minutes and six minutes, which meant that a significant proportion of the prison population was likely to be disadvantaged.

Finally, the Ombudsman considered that, given the high levels of literacy problems amongst prisoners, the choice to communicate by letter or telephone was not an equal one. Furthermore, letter writing between family and friends was on the decline in society at large. The immediacy and intimacy of telephone communication could not be substituted by letter writing. In particular, letter writing was time consuming, and whilst prisoners might have the time to write, their family and friends outside might not. The high cost of telephone calls would have an indirect impact on prisoners' ability to maintain contact with their family and friends.

On 9 November 2009, in a letter directed to the Prisons Ombudsman, the Director General of the Prison Service (‘Director General’) stated that the separate pricing structure from that used in payphones was assumed following the introduction of the 30 pence minimum charge in 1999 and that it ensured that pricing was consistent so that prisoners who made short calls did not effectively subsidise those who made longer calls.

The Director General further maintained that the majority of calls made by prisoners were short while only six percent of calls lasted longer than 15 minutes. Thirty-eight percent of calls lasted less than two minutes and 53 percent of calls were less than two minutes 53 seconds, which was the point where public payphone calls became cheaper by comparison. Having regard to the foregoing, the Director General saw no reason to change the practices in this area.

In a letter dated 4 January 2007 the Director General confirmed its intention not to follow the Ombudsman's recommendation. It was underlined that the current contract with BT would expire in May 2011 and that BT had been informed that there would be no extension.

On 13 February 2007 the applicant's solicitors wrote a letter before action challenging the Prison Service's failure to reduce the excessive cost of telephone calls for prisoners.

On 27 February 2007 the Prison Service responded to the applicant's letter before action. They made the following arguments. The pricing structure for telephone calls made by prisoners was reasonable and proportionate as it prevented prisoners who made short telephone calls from subsidising those making long telephone calls. Any reduction in the cost of calls would require a subsidy from the taxpayer which was unacceptable. Moreover, there was no legal obligation for the Prison Service to provide prisoners with telephone services. It could therefore be argued that prisoners' access to a telephone was a privilege and not a right. Prisoners traditionally made calls of short duration and historical call data suggested that 64 percent of prisoner calls would be cheaper using the prison call rates. Prisoners still benefited from the 10 pence minimum charge and analysis of the historical call data clearly indicated that a significant volume of calls were terminated before the connection was made (for example due to an answering machine or the unavailability of the person sought). Finally, the contract with BT allowed prisoners to pay for their calls with BT meeting the whole cost of the telephone network with the potential to make a profit.

On 29 March 2007 the applicant lodged an application for permission to apply for judicial review of the Prison Service's refusal to reopen negotiations with BT, with regard to reducing the cost of telephone calls for prisoners as recommended by the Ombudsman.

On 6 July 2007 Sullivan J refused the application following a review of the papers. In so doing, he reasoned that even if Article 8 was engaged, which he doubted, given the other means available to the applicant to maintain family contact (such as correspondence, visits and short telephone calls), and despite their limitations, any interference was not arguably so serious so as to amount to an infringement of the applicant's Article 8 rights. The applicant had contended that his rights under Article 8 had been violated as it had not been demonstrated that there were legitimate reasons for the charging regime. Though one might agree or disagree with the Prison Service's assertion that prisoners were better served by the current charging regime in place, it was an entirely rational justification. The fact that no research had demonstrated that the Prison Service's view was true did not mean that there was a lack of justification or that there was an arguable breach of Article 8 of the Convention.

On 22 November 2007 permission to apply for judicial review was again refused following an oral hearing. Mitting J pointed out that the applicant's claim for a mandatory order was impossible, but he accepted that if a breach of the applicant's Convention rights had occurred, it would be appropriate for the court to make a declaration to that effect. In refusing the application, Mitting J considered that Article 8 was engaged in a limited sense as prisoners, notwithstanding their incarceration, had a family life. Of course, such family life could not be maintained in the same way as someone at liberty would seek to maintain it but it nevertheless could be maintained by correspondence, family visits and telephone calls. Within that context, telephone calls were of some importance. Consequently, the ability of a prisoner to communicate with his family by telephone was capable of engaging Article 8 and any interference would ‘arguably amount to a violation of that right unless it could be shown under Article 8 § 2 to be proportionate and justified.’

It was ‘self evident’ that this was a ‘question of fact and degree and that not every restriction upon free use of telephone facilities can constitute an interference with family life such as to engage Article 8…’ In Mitting J's view, the facts of the present case were incapable of giving rise to a reasonable argument that the applicant's Article 8 rights had been infringed. The means of communication open to prisoners, which included correspondence, family visits and telephone calls (albeit on the tariff criticised by the Ombudsman) demonstrated proper regard for the family life of serving prisoners. The fact that a different tariff would permit prisoners to make telephone calls at a lesser cost than under the current regime was ‘simply incapable of infringing family rights in the circumstances…’

On 2 May 2008 the Court of Appeal dismissed the applicant's appeal against the refusal to grant him permission to apply for judicial review. Buxton LJ, in delivering judgment, accepted at the outset that under the prison telephone regime applicable to the applicant ‘… a 15 minute call from prison costs £1.64, or more than five times the public box rate’. He further found that Article 8 was capable of being engaged by an issue relating to telephone calls made by prisoners to their families. He considered that the question before the court was whether the availability of telephone calls in itself engaged Article 8, and if so, whether the facts of the case demonstrated an interference sufficiently severe to breach Article 8 § 1 of the Convention.

In light of this Court's judgment in the case of A.B. v. the Netherlands, no. 37328/97, 29 January 2002, it was doubtful whether it was open to the Court even to question the availability of telephone calls through the application of Article 8. Notwithstanding, the circumstances in the present case with regard to the availability of telephone calls were not sufficiently severe to constitute an interference under Article 8 § 1. As such, the Prison Service had no obligation to justify the charging regime as being proportionate under Article 8 § 2.

As to the applicant's complaint under Article 14 of the Convention, a limited approach had to be taken when considering whether the availability of telephone calls fell within the ambit of Article 14. In light of the fact that Article 8 was not engaged in the circumstances, Article 14 could not be relied on. In any event, in respect of use of the telephone, prisoners could not claim to be in a relatively comparable position to persons in the wider community.

On 24 June 2008 the NCC submitted a complaint to Ofcom, with the assistance of the Prison Reform Trust (PRT). The complaint stated specifically that the high cost of telephone calls made by prisoners in England, Wales and Scotland seemed unrelated to the cost of provision of the service and that the service contract itself prevented competition.

On 22 September 2008 Ofcom published its response to the complaint. It found that the cost of telephone calls made by prisoners appeared to be high compared to the measure of costs involved and the cost of telephone calls in private prisons. It also noted that at least until May 2008, the average cost of telephone calls from Prison Service prisons in England, Wales and Scotland was higher than if the same pattern of telephone calls were made from a BT public payphone. In particular, the average cost of a telephone call to a landline was 53 pence from a prison telephone but only 40 pence from a BT public payphone. It was observed that three of the eleven privately managed prisons in the United Kingdom operated on a non-BT pinphone system. The average cost of a telephone call from Prison Service prisons in England, Wales and Scotland to a landline was 53 pence but only between 32 pence to 46 pence from private prisons not using the BT pin-phone system. Moreover, under the contract with BT, the Prison Service received a 7 % commission on the revenue generated by telephone calls made by prisoners. BT, on the other hand, received a relatively high rate of return on the revenue generated by these telephone calls which amounted to 20 to 30 % return over the entire contract period until 2011 and which was worth more than GBP 10 million in revenue.

Ofcom recommended early renegotiation between the Ministry of Justice and BT of the current service contract with a view to reducing the cost of telephone calls made by prisoners. Ofcom warned that if the Ministry of Justice did not engage in early renegotiation, or if the renegotiation was unsuccessful in reducing the cost of telephone calls, they might reconsider the matter and take further action. This further action could include referring the matter to the Competition Commission.

The prison telephone service (except in certain private prisons) is provided under a contract between BT and the Prison Service. A prisoner will pay 10 pence for the first 55 seconds of any call to a United Kingdom landline and 1 p for each 5.5 seconds thereafter.

In public telephone boxes, a minimum charge of 30 pence is imposed for any call of up to 15 minutes, and thereafter 10 pence for each period of 7.5 minutes.

This means that calls by a prisoner that last for no more than two minutes and 45 seconds are cheaper than from a public payphone, but longer calls will be more expensive than public telephone calls by amounts significantly increasing as the call increases in length. For instance, a 15 minute call from prison costs GBP 1.64, or more than five times than from a public payphone.

Rule 4 of the Prison Rules 1999 (SI 1999/728) (‘the 1999 Rules’) provides the following:

Rule 34 of the Prison Rules 1999 (as amended by the Prison (Amendment) (no.2) Rules 2000) provides that any interference with a prisoner's right to communicate is subject to the qualification that such restrictions must not interfere with the prisoner's Convention rights unless proportionate to the aims prescribed by Article 8 § 2 or for prison security, discipline or good order.

In ‘A Human Rights Approach to Prison Management,’ Handbook for Prison Staff, Second Edition, which was produced by the International Centre for Prison Studies in conjunction with the Foreign and Commonwealth Office in 2009, prison staff are instructed as follows (see p. 100):

It further states (see p. 104):