Donaldson -v- United Kingdom, European Court of Human Rights
A ruling was given by a seven-judge chamber on January 25th, 2011.
Neutral citation (2011) ECHR 210
Ruling
The court ruled inadmissible a complaint by a republican prisoner in Maghaberry Prison that a refusal to permit him to wear an Easter lily outside his cell violated his right to freedom of expression, and was discriminatory.
Background
Christopher Donaldson is serving a 12-year sentence in Maghaberry prison in a segregated wing for republican prisoners. Under prison rules, prisoners were not allowed wear emblems outside their cells, other than shamrock on St Patrick’s Day and poppies on Remembrance Day, which were described as non-political and non-sectarian.
On Sunday, March 28th, 2008, the applicant wore an Easter lily to commemorate those who died in the Easter Rising. A prison officer asked him to remove it and when he refused he was charged with violating rules, found guilty and served three days’ confinement in his cell.
He applied for leave to bring judicial review proceedings challenging the ban on the wearing of Easter lilies, arguing that it represented a disproportionate interference with his right under Article 10 of the European Convention on Human Rights to express his political beliefs and cultural identity. He also argued it was discriminatory, in that the wearing of the poppy was permitted.
The High Court refused his application for leave for judicial review, holding that any interference had been proportionate. He appealed to the Court of Appeal, which treated the proceedings as an appeal but rejected the appeal on its merits.
The court found that, given the history of emblems in a divided society, the rule against the wearing of the lily in communal areas was proportionate to the objective of avoiding disorder in the prison, and this held true even where there were segregated areas in the prison. Counsel advised the applicant he was unlikely to be granted leave to appeal to the Supreme Court.
Decision
The court cited the law relating to emblems in Northern Ireland, pointing out that the prison rule echoed guidance issued to employers by the Northern Ireland Equality Commission. It also pointed out that the legality of the ban on wearing the Easter lily in Northern Ireland’s prisons had already been upheld in relation to an integrated prison.
The court stressed prisoners in general enjoyed all fundamental rights and freedoms under the convention except the right to liberty, and including the right to freedom of expression. Any restriction on this right must be justified, such justification including security considerations.
It noted that the domestic courts had acknowledged that the ban interfered with the applicant’s convention rights, therefore the question was whether this was in pursuit of a legitimate aim and was necessary in a democratic society.
In assessing this, the court accepted that contracting states must enjoy a wide margin of appreciation in assessing which emblems could potentially inflame existing tensions if displayed publicly. It noted that the Easter lily was one symbol considered by both the Equality Commission and the prison authorities as inherently linked to the community conflict, and therefore was inappropriate in the workplace and the communal areas of prisons.
In view of the limited nature of the interference, it considered that a restriction on displaying the Easter lily would be proportionate to the legitimate aim of preventing disorder in a prison, including in segregated areas. It pointed out that one of the objectives of the policy was to provide a working environment for prison officers free from any symbol they found threatening. Therefore the reasons for the ban were relevant and sufficient.
It found there had been no discrimination under Article 14, as the authorities had already distinguished between the poppy and the Easter lily, describing the latter as directly linked to the conflict, while the poppy, while linked to one community, was not directly so linked. This policy fell within the margin of appreciation, it ruled.
The full ruling is on www.echr.coe.int