Bobby Talalay appears in important Human Rights case on prayer in prisons

Bobby Talalay appeared for the Respondent in an appeal concerning the correct approach for the Courts to take when considering whether the state has complied with its positive obligations under art.9 ECHR to facilitate a prisoner’s right to pray: Ali v Secretary of State for Justice [2024] EWHC 2829 (KB).

The Appellant is a high-risk Muslim prisoner who was housed on the High Secure Unit (HSU) in HMP Belmarsh. The Appellant wanted to participate in Friday communal prayer (Jumuah), which was offered on the HSU. A separate Jumuah was offered to the prisoners in the main HMP Belmarsh prison. On a number of occasions over a two-year period, Jumuah was not offered on the HSU due to low numbers or the Imam being off sick. The Appellant brought a claim that the failure to offer Jumuah to him on those dates amounted to a breach of his art.9 ECHR rights.

The main issues for the High Court on appeal, were (a) whether the trial judge correctly assessed the case to be a facilitation case as opposed to a prohibition case and (b) if that was right, whether art.9(2) remained relevant to the judge’s task.

The Appellant argued that, as he was prohibited from attending the main prison’s Jumuah, the state had interfered with his right and that interference needed to be justified as being (a) prescribed by law and (b) proportionate as per the requirements of art.9(2). The Secretary of State argued that communal prayer was a right that could only exist if facilitated by the prison. As the Appellant had no right to leave the HSU, the only issue was whether the scheme for Jumuah on the HSU was adequate to meet the requirements of art.9(1), and it did not need to be perfect to meet those requirements.

The judge preferred the Secretary of State’s arguments and made the important ruling at [38] that once a scheme was found to comply with the positive obligations of the state under art.9(1), there was no need to consider art.9(2):

I therefore agree with Mr Talalay that there is no basis on which the judge can be criticised for approaching the issue before her by reason of the positive obligations under article 9(1). Rather, she was correct to do so and that meant that there was no need for her to consider any of the appellant’s arguments under article 9(2). There is and was no “prohibition” as alleged by the appellant and all those arguments fell by the wayside.

The ruling marks an important and comprehensive statement of the principles to be applied to positive obligation claims for art.9 (and other similarly drafted provisions) of the ECHR. In such cases, the primary question is likely to be whether the facts properly fall to be determined as a positive obligations case or as an interference, which would then need to be done in a way that is prescribed by law.

Bobby Talalay was instructed on behalf of the Secretary of State for Justice.

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Related barristers

Robert Talalay

Call 2010

Related areas

Civil Liberties and Human Rights

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