Muslim high-security prisoner loses English appeal against refusal of human rights claim for inability to attend prayers

About this case:

• Citation:
  [2024] EWHC 2829 (KB)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Mrs Justice Tipples

Abdullah Ali claimed that the Secretary of State for Justice had failed to facilitate obligatory Friday prayers on numerous occasions while he was located in the High Security Unit at HMP Belmarsh and thus violated his rights under article 9 ECHR. He argued that the county court judge who first heard the application erred in her approach and should have determined whether a risk assessment should be carried out on his attendance at communal worship.

The appeal was heard by Mrs Justice Tipples DBE, with Eleanor Mitchell appearing for the appellant and Robert Talalay for the respondent.

Endeavouring to facilitate

As an HSU prisoner, the appellant was held separately to other prisoners at HMP Belmarsh. At HMP Belmarsh the respondent made arrangements for a Jumuah service, communal Friday prayers for Muslim men which required a minimum of three congregants, to be held in the HSU in addition to another service in the main part of the prison. The appellant believed attendance at Jumuah to be a requirement of his faith. Nationally applicable Prison Service Instructions stipulated that category A prisoners located within the HSU could not attend services outside the Unit unless approved by the Director of High Security Prisons.

Although a Jumuah took place on most weeks while the appellant was in the HSU, there were fourteen occasions between December 2015 and August 2016 when it did not take place because of low numbers of Muslim prisoners or the Imam being on sick leave. On these occasions the appellant asked to attend the service in the other part of the prison but was refused each time. In the autumn of 2016, he was moved from HMP Belmarsh to another prison.

The county court judge took the view that this was a positive obligation case rather than one of deprivation of rights. The respondent had endeavoured to allow Jumuah to take place within the HSU and this had happened on 89 per cent of occasions. While the system was not perfect, it did not render the respondent in breach of article 9.

It was submitted for the appellant that the judge had taken the wrong approach to the case. Although the respondent may have been endeavouring to facilitate the Jumuah in the HSU the respondent was, at the same time, actively preventing him from attending the Jumuah in the main prison, which was the only service available on the fourteen occasions the HSU service did not take place.

Not every possible occasion

In her decision, Justice Tipples said of the criticisms of the county court judge: “The appellant’s argument that, in effect, the judge made inadequate findings of fact and that the respondent ‘prohibited’ him from attending the Jumuah in the main prison, when there was no Jumuah in the HSU is, in my view, wholly contrived. The fact there was a Jumuah in the main prison is and was irrelevant. The appellant had no right to attend a Jumuah outside the HSU, whether in the main prison or anywhere else. He was a category A prisoner assigned to the HSU, and had to remain in the HSU, and the appellant’s transfer to the HSU was never challenged.”

She continued: “It is clear that the state enjoys a ‘certain margin of appreciation in determining the steps to be taken in compliance with the Convention’. It is also clear that the right to practise one’s religion under article 9(1) is not breached in every case in which the circumstances in which an individual can practice his or her religion are sub-optimal. This means that there is no breach of article 9 where the right to pray is not offered to all prisoners on every possible occasion.”

Addressing whether a risk assessment ought to have been carried out, Tipples J said: “This ground does not take the appellant anywhere. The judge found as a fact that the respondent had a system in place to provide Jumuah in the HSU which, although not perfect, complied with its positive obligations under article 9(1). The appellant was able to attend the Jumuah in the HSU, which was available to him 89% of the time he was held there. Further, there was no requirement for an individual risk assessment in order that he could do so.”

She concluded: “When there was no Jumuah in the HSU, the appellant had no right or entitlement to attend the Jumuah in the main prison. Rather, that needed the express authorisation of the Director of the High Security Prisons, and the judge accepted the evidence such authorisation would not have been given for the appellant given the nature of his office, and the reason he had been transferred into HMP Belmarsh. It would have been pointless for the respondent to carry out an individual risk assessment for the appellant in the circumstances he suggests, and there was no basis under article 9 requiring the respondent to do so.”

The appeal was therefore dismissed.