R (A) v Secretary of State for the Home Office
Reference:  EWHC 2846 (Admin)
Court: Administrative Court
Judge: Kennedy LJ & Royce J
Date of judgment: 27 Nov 2003
Summary: Public Law - Judicial review - Human rights - Freedom of expression - ECHR, Art 10, 6 - Suspected terrorists - Asylum seekers - Interviews
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Instructing Solicitors: Birnberg Pierce & Partners for the Claimant; Treasury Solicitor for the Respondent
The claimants were six asylum seekers who were also suspected terrorists, five of whom were held in prison as category A prisoners while the sixth was a patient at Broadmoor Hospital. They applied for judicial review of the decision of the Home Secretary to permit journalists to interview them only on the condition that the interviews were conducted within earshot of officials and were tape-recorded.
Whether the conditions imposed by the Home Secretary were irrational as being contrary to Article 10 of the ECHR. It was conceded that the conditions did interfere with the claimants’ right to freedom of expression but argued that the monitoring was necessary within a democratic society within the meaning of Art 10(2).
The restrictions imposed fell within Art 10(2). The maintenance of good order and discipline within prisons required a degree of monitoring when prisoners in were interviewed, and the additional dimension of national security justified the extra measure of tape-recording proposed.
Monitoring of communication between prisoner and solicitor is an interference with Art. 6 (R v Home Secretary ex parte Leech  QB 198). Yet the Court appears prepared to tolerate interference with Art. 10 rights on the grounds of national security. The facts of the case raise serious questions about whether such interference was necessary or proportionate. The Applicants were not convicted prisoners, nor were they held on remand; they were detainees suspected (ex hypothesi on grounds that were insufficient to charge them) of involvement with terrorism. The Home Secretary did not suggest that the interviews were likely to assist any criminal agenda, yet he sought a right to monitor and record their conversations with journalists. In a civilised society what pressing social need could justify such a blanket interference? Is the belief that they might say something that might lead to the detection of terrorists sufficient? If so, where does the application of such a principle end?