FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 52990/08
by Richard DAVISON
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 2 March 2010 as a Chamber composed of:
Lech Garlicki, President,Nicolas Bratza,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,Fatoş Aracı, ,
Having regard to the above application lodged on 24 October 2008,
Having deliberated, decides as follows:

THE FACTS
The applicant, Mr Richard Davison, is a British national who was born in 1965 and lives in Middlesex in England. He was represented before the Court by Mr S. Humber of Leigh Day & Co Solicitors, a lawyer practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.

1.	The applicant’s personal circumstances

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.

2.	The applicant’s complaint to the Prison Ombudsman

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.

3. The reaction of the Prison Service to the Ombudsman’s Report

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.

4.	The applicant’s letter before action to the Secretary of State

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.

5.	The applicant’s application for permission to apply for judicial review

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...”

6.	The applicant’s appeal against the refusal to grant him permission to apply for judicial review

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 , 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.

7.	National Consumer Council (NCC) Complaint to Office of Communications (Ofcom)

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.
B.  Relevant domestic law and practice
1.	Telephone Services

 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.

2.	Prison Rules

Rule 4 of the Prison Rules 1999 (SI 1999/728) (“the 1999 Rules”) provides the following:

“4. - (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.

    (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”

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.

3.	Handbook for Prison Staff

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):

“Forms of contact other than family visits are also important. Prisoners should be able to send and receive correspondence as freely as possible and where feasible to make and to receive telephone calls.”

It further states (see p. 104):

“In many prison systems it is now possible for prisoners to make or to receive telephone calls. Logistical arrangements differ from country to country. In some cases the person receiving the call from the prisoner has to agree to meet the cost of the call. This can be a very expensive arrangement since such calls are normally charged at a higher rate than normal calls. In other prison systems prisoners can purchase special telephone cards, which sometimes will only permit calls to be made to approved telephone numbers. Telephone conversations become especially important when the prisoner is being held many miles from home and it is difficult for his or her family to visit.”

C.  Relevant international material
Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules, adopted by the Council of Europe’s Committee of Ministers on 11 January 2006, recommends the following at paragraph 24:

“Contact with the outside world

24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.

24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.”
COMPLAINTS
The applicant complained under Article 8 of the Convention that the excessive cost of longer telephone calls in prison constituted a disproportionate interference with his right to respect for his family life.
He further complained under Article 14 of the Convention in conjunction with Article 8 that he had been discriminated against on the grounds of his status as a prisoner.
THE LAW
The applicant complained that the disproportionately high cost in prison of telephone calls lasting longer than two minutes and 45 seconds interfered with his contact with his family in violation of Article 8 of the Convention, which reads as follows:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The applicant stressed in particular his limited earnings as a prisoner which were approximately 10 GBP per week and emphasised that the sum had to cover all of his prison expenditure, such as food from the prison canteen as well as credit for his prison telephone pin-account. Against that background, he argued that the exaggerated expense of longer telephone calls inhibited him in maintaining any meaningful contact with his family. He further contended that as the Prison Service had not engaged in any tendering process before agreeing on the new pricing regime with BT which had the effect of significantly increasing the price of longer calls, there was no evidence that such a regime was necessary. Moreover, as no impact assessment of the pricing regime on prisoners’ calls had been undertaken it had not been established that such a system was proportionate.
The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There may in addition be positive obligations inherent in effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (Dickson v. the United Kingdom [GC], no.44362/04, § 70, CEDH 2007-).
The Court further recalls that detention entails inherent limitations on the detained person’s private and family life. However, it is an essential part of a detainee’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, among other authorities, , no. 78146/01, § 123, 12 June 2008;, no. 48666/99, § 127, ECHR 2007-...(extracts); and ,no. 31583/96, § 144, 3 April 2003).
The Court has previously held that Article 8 cannot be interpreted as guaranteeing prisoners the right to make telephone calls, in particular where the facilities for contact by way of correspondence are available and adequate (, no. 37328/97, §§ 92 and 93, 29 January 2002).
Moreover, where, as in the present case, telephone facilities are provided by the prison authorities, these may – having regard to the ordinary and reasonable conditions of prison life – be subjected to legitimate restrictions, for example, in the light of the shared nature of the facilities with other prisoners and the requirements of the prevention of disorder and crime (ibid.)
The Court has had regard to Recommendation Rec (2006) 2 of the Council of Europe’s Committee of Ministers to member states on the European Prison Rules (see Relevant international material above), which emphasises the importance of prisoners being “allowed to communicate as often as possible by letter, telephone or other forms of communication with their families...” However, the Court does not need to decide whether prisoners should now be regarded as having a right under the Convention to use of a telephone, as what is in issue in the present case is not access to a telephone as such but rather the cost of the telephone calls that the applicant was allowed to make.
The Court notes that it was accepted by the Court of Appeal in the present case that a 15 minute call from prison cost more than five times the public rate. It further notes the limited financial means available to the applicant whilst serving his sentence in prison. The Court also makes reference to the difficulties often involved in personal family visits to prison as acknowledged by the domestic authorities themselves in their Handbook for Prison Staff (see above) and the drawbacks associated with written correspondence identified by the Prison Ombudsman (see above).
Notwithstanding, the applicant was able to enjoy regular telephone contact with his family, albeit not as freely or as economically as he might have preferred and it is difficult to say that he suffered any interference with his right to respect for family life.
Moreover, even if the State authorities’ policy of applying a higher rate for longer telephone calls from prison in order to subsidise the cost of shorter calls could be said to have given rise to an interference with the applicant’s Article 8 rights, the Court considers that this policy pursued a “legitimate aim” and was “necessary in a democratic society.”
In this connection, the Court observes that the Prison Service based its telephone call pricing regime on certain considerations, which can be viewed in terms of the protection of the rights of other prisoners with regard to use of the telephone. Firstly, as recognised by the Prison Ombudsman, the difference in charges between prison telephone rates and those applicable to public payphones had first arisen in October 2000 when BT had decided to increase the minimum charge from 10 pence to 30 pence. The Prison Service had wished to retain the 10 pence minimum charge, relying on historical call data which showed that a significant volume of prisoners’ calls were terminated before a connection was made, owing to various factors such as getting through to an answering machine or finding that the person sought was unavailable (see the Prison Service’s reply to the applicant’s letter before action). The Prison Service had further relied on statistical information relating to prisoners’ calls which revealed that a significant majority of calls (namely 64 %) made by prisoners were of short duration. In light of such data, the Prison Service had opted for a pricing regime which would ensure the lowest cost for shorter calls, which would be subsidised in part by the price of longer calls. Furthermore, the Prison Service had also taken into consideration the fact that this pricing policy would not require any subsidy from the taxpayer.
In the circumstances of the present case, the Court does not find that the Prison Service, in striking a balance that allowed for shorter prison telephone calls to be subsidised by calls of longer duration, overstepped the margin of appreciation available to the State under Article 8.
It follows that this complaint must be rejected as being manifestly ill‑founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The applicant further complained under Article 14 of the Convention, in conjunction with Article 8, that he had been discriminated against due to his status as a prisoner.
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
In so arguing, the applicant emphasised the great disparity between the price of telephone calls available to the public and those applicable to prisoners.
The Court recalls that not every difference in treatment will amount to discrimination contrary to Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction (see , judgment of 18 February 1991, Series A no. 192, p. 19, § 60; , judgment of 22 October 1996,  1996-IV, § 72). Further, States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see  judgment of 27 March 1998, 1998-II, p. 587, § 38).
As to whether the applicant has been subject to a difference in treatment, the Court again refers to the fact, as accepted by the Court of Appeal, that a 15 minute call from prison costs more than five times the public rate. It is therefore clear that there is a difference in treatment in issue. However, being a convicted prisoner may be regarded as placing the individual in a distinct legal situation (see Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008) so that he cannot claim to be in an analogous situation to telephone users outside prison. In any event, the difference in treatment was objectively justified for the reasons explained above.
It follows that this complaint must also be rejected as being manifestly ill‑founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
	
	Fatoş Aracı	Lech Garlicki
	Deputy Registrar	President