Information Note on the Court’s case-law 104

January 2008

Shelley v. the United Kingdom (dec.) - 23800/06

Decision 4.1.2008 [Section IV]

Article 8

Article 8-1

Respect for private life

Decision not to implement a needle-exchange programme for drug users in prisons to help prevent the spread of viruses: inadmissible

Although drugs use is prohibited in prisons in the United Kingdom, official surveys indicate that a significant percentage of prisoners inject drugs while in prison. The sharing of needles and syringes carries a risk of infection from serious viruses such as Hepatitis B and C and HIV. Among the methods available for reducing the risk are needle-exchange programmes, whereby used equipment is exchanged for sterile needles and syringes, and disinfecting agents. A number of studies suggest that needle-exchange programmes are more effective than disinfection at preventing transmission and almost all health au thorities in the United Kingdom make such programmes available to the general public. However, with the exception of a pilot scheme in a Scottish prison, needle-exchange programmes are not available to the prison population. A scheme for the provision of d isinfecting tablets to prisons has been in operation since 2004.

The applicant, a prisoner who did not specify whether or not he took drugs, sought permission to seek judicial review of the decision to provide disinfecting tablets instead of needle-exchang e programmes as he was concerned that it failed sufficiently to address the risks – which were not confined to drug users – caused by the sharing of infected needles. His application was refused. In refusing a renewed application for permission, the Court of Appeal noted that there was no satisfactory evidence as to the difference in the decreased risk to life inherent in a needle-exchange programme as opposed to a disinfectant scheme and that there remained a legitimate concern that a needle-exchange progr amme might increase drugs use and the number of syringes in prison. The matter was to be kept under review.

(a) Inadmissible under Articles 2, 3 and 8

(i) Victim status : Since the applicant had not specified that he personally was at any real or immediat e risk of infection his complaint had to be regarded as concerning the general situation within the prison system. The Court was not satisfied that the general unspecified risk, or fear, of infection as a prisoner was sufficiently severe as to raise issues under Articles 2 or 3 of the Convention. It had, however, given consideration to the extent to which Article 8 required the authorities to take particular preventive measures to counter infection rates in prisons. In this context it was prepared to accept for the purposes of the case that, as a person detained in prison where there was a significantly higher risk of infection of HIV and HCV, the applicant could claim to be affected by the health policy implemented in that regard by the prison authorities a nd so had victim status.

(ii) Compliance : There was no authority in the case-law that placed any obligation under Article 8 on a Contracting State to pursue any particular preventive health policy. While it was not excluded that a positive obligation migh t arise to eradicate or prevent the spread of a particular disease or infection, the Court was not persuaded that any potential threat to health that fell short of the standards of Articles 2 or 3 would necessarily impose a duty on the State to take specif ic preventive steps. Matters of health care policy, in particular as regards general preventive measures, were in principle within the margin of appreciation of the domestic authorities. The applicant could not point to any directly negative effect on his private life. Nor was he being denied any information or assistance concerning a threat to his health for which the authorities were directly or indirectly responsible. Giving due leeway to decisions about resources and priorities and to a legitimate polic y to try to reduce drug use in prisons, and noting that some preventive steps had been taken (the provision of disinfecting tablets) and that the authorities were monitoring developments elsewhere, the Court concluded that the respondent Government had not failed to respect the applicant’s private life: manifestly ill-founded .

(b) Inadmissible under Article 14 in conjunction with Article 8

(i) Scope : Convicted prisoners could be regarded as having been placed in a distinct legal situation which was inextricably bound up with their personal circumstances and existence. Their complaints did not therefore fall outside the scope of Article 14 on this gro und.

(ii) Analogous positions : Prisoners did not forfeit their Convention rights in prison, although the manner and extent to which they could enjoy them would inevitably be influenced by the context. Accordingly, the question whether or not a prisoner could, for the purposes of Artic le 14, claim to be in an analogous position to people in the community depended on the subject-matter of the complaint. The applicant’s complaint was that different standards of health care were applied in prison. Since the European Prison Rules, the Commi ttee for the Prevention of Torture (CPT) and the domestic prison regulations themselves provided that health care in prisons should be the same as in the community, the Court was prepared to assume for the purposes of the application that prisoners could c laim to be on the same footing as the community as regards the provision of health care.

(iii) Justification : The Court found that the difference in preventive policy applied in prisons and in the community (with needle-exchange programmes only being avai lable in the latter) fell within the State’s margin of appreciation and could, as matters stood, be regarded as proportionate and supported by objective and reasonable justification. Among the factors noted by the Court in reaching that conclusion were the States’ particularly wide margin of appreciation with regard to preventive measures; the absence of any specific guidance on the issue of needle-exchange programmes from the CPT; the fact that the risk of infection flowed primarily from the prisoners’ own conduct; and the various policy considerations that had led the authorities to deal with the risk of infection through the provision of disinfectants and to approach the question of needle-exchange programmes with caution while monitoring their progress e lsewhere: manifestly ill-founded .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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