Muslim prisoner’s voluntary fasting protected by Art 9 ECHR (Bashir)  

R (Bashir) v IA & Govr HMP Ryehill and SSJ [2011] EWHC 1108 (Admin) (HHJ Pelling QC)

> judgment

In this case, it was undisputed that the Claimant ("C"), an accepted devout Muslim, was unable to provide a sufficient urine sample because he was fasting at the time; on the advice of a prison Imam. This had meant that the C was unable to take water during his period of confinement for the drug testing. In finding the C guilty of the offence of disobeying a lawful order, the Independent Adjudicator (‘IA’) did not reject the genuineness of the C’s faith or belief that he should not break his fast; the C having been supported in that regard by the prison Imam, who also gave evidence at the adjudication hearing. The IA held, however, that because this was not a “religious festival”, the Claimant’s fasting was not protected in the same way that fasting for Ramadan was protected by prison policy; see the MDT manual ( PSO 3601 ) at §§4.70 – 4.75 (whereby a prisoner unable to give a sample would not be charged with an offence, notwithstanding his not taking water).

HHJ Pelling found that this restrictive approach to Article 9 of the ECHR and in particular Article 9(2), namely the freedom to manifest one’s religion, was plainly wrong in law; §16. In light of the issues raised before the IA, HHJ Pelling held that the IA ought to have considered the following questions; §14:

(i) Are the Claimant’s rights under Article 9 engaged?

(ii) If so, has there been an interference with those rights?

(iii) If so, was the interference one that was both prescribed by law or necessary in the interests of public order, health or morals and proportionate to the end pursued?

In the absence of such an assessment having been carried out by the IA, HHJ Pelling engaged in his own assessment of Article 9; it being hotly disputed by the SSJ that Article 9 was even engaged by the Claimant’s voluntary fasting. The SSJ sought to rely on an “expert” in Muslim affairs, who indicated that a voluntary fast could be broken. The Judge rejected the SSJ’s argument and reliance on that evidence, pointing out that this evidence post-dated the adjudication and that there had been no previous dispute to the genuineness of the C’s faith and belief; §21. Further, it is well-established that in order to determine whether Article 9 is engaged, the Court will generally consider whether the assertion of the belief is made in good faith, not whether the belief is valid by reference to some objective standard or religious texts; see §18 (with reference to R (Williamson) v SSES [2005] 2 AC 246 at §22). The Judge went on to find that the Claimant’s fasting and refusal to break his fast was “intimately linked” to his religious belief; §§20 – 21.

HHJ Pelling also rejected the SSJ’s ex post facto attempts to demonstrate that the charge and conviction had been proportionate, the SSJ having pointed to the disproportionate costs of making adjustments for prisoners wishing to engage in voluntary fasting. The Judge noted that this evidence came much too late, was lacking in any case and, in particular, did not address proportionality vis-a-vis this C’s case; §§29 – 32. The Judge remarked that; §30:

“...The quality of the evidence made available to me leads me to think that the Prison Service has not attempted seriously to assess the impact of making adjustments for Muslims undertaking personal fasting. All this leads me to conclude that disproportionality based on costs and administrative inconvenience has not been demonstrated.”

The fact remained that the SSJ had in place a proper approach, in the form of the MDT policy, to fasting protected by Article 9. The SSJ had not demonstrated why that approach could not have been deployed here or, for example, why the Claimant could not have been tested later; see §§25 – 28.

Comment

A number of points emerge from this judgment:

1. Any adjudicator must follow the approach set out by HHJ Pelling at §14; that is, where a prisoner has been unable to provide a urine sample due to fasting that is arguably protected by Article 9. Any subsequent assessment will involve consideration of the genuineness of the prisoner’s faith (which may include the calling of religious advisers who have experience of the particular prisoner) and it is likely that the prison will have to adduce evidence to demonstrate why the charge and proposed conviction would be proportionate; e.g. see §§28 – 29.

2. It is likely that the MDT Manual and its sole reference to “religious festivals” will have to be amended to cover religious fasting that attracts the protection of Article 9.

3. The prison service is also likely to have to bring in a “fast-reporting” system, whereby prisoners can inform the prison of their fasting. The absence of such a system was highlighted by HHJ Pelling at §§18 – 19, his Lordship pointing out that the C, therefore, could not be blamed for not having made the authorities aware of his fast prior to the drug test. It is plain that the implementation of such a system would enable the prison to be aware of those prisoners who are fasting, such that they can target those prisoners at certain times (albeit without any prior notice).

4. The offence of disobeying a lawful order is not a strict liability offence and it is required that the prison prove that the prisoner intended to disobey the order – despite the SSJ’s initial protestations to the contrary (§8).

This is a welcome judgment. The Judge properly found that religious fasting by a devout Muslim prisoner had warranted far more attention and respect than was accorded to him by the SSJ and IA, the latter having blithely stated that whilst the C was entitled to fast, he bore the consequences of such fasting. The SSJ has not sought permission to appeal.

The Claimant was represented by Vijay Jagadesham of Garden Court North and Carl Miles of Burton Copeland LLP .

Quick links

> 7/6/11 - Religious freedom doesn't stop at the prison gate (UK Human Rights Blog)