The recent critics of Strasbourg judicial activism will, doubtless, be pleased by the Court’s latest Article 10 decision. Free speech campaigners may have more mixed views. In the case of Donaldson v United Kingdom ( ECHR 210) the Fourth Section held that the application of a serving Republican prisoner alleging a violation of his rights under Article 10 and Article 14 (discrimination) was inadmissible.
The facts were simple. The Northern Ireland Prison Service Standing Orders stated that prisoners were not permitted to wear emblems outside their cells or display emblems in their cells. In the prison where the applicant was held there was an exception for the wearing of shamrock on St Patrick’s Day and the wearing of poppies on Remembrance Day as these emblems were deemed to be “non political and non-sectarian” if worn at the appropriate time. On Easter Sunday, 23 March 2008, the applicant wore an Easter lily in commemoration of the Irish republican combatants who died during or were executed after the 1916 Easter Rising. A prison officer asked him to remove it and when he refused he was charged and subsequently found guilty of disobeying a lawful order under the Prison and Young Offenders Centre Rules (Northern Ireland) 1995. He was given three days of cellular confinement by way of punishment.
The applicant’s domestic claim for judicial review failed. The legality of the ban on wearing the Easter lily in Northern Ireland’s prisons has been challenged before the domestic courts on a number of occasions (see Re John Byers  NIQB 23 and In re McCafferty  NIQB 96). The applicant complained to the Court of Human Rights that his Article 10 rights and his rights under Article 14, taken with Article 10, had been violated.
The Court noted that the Easter lily was considered as a symbol “which was inherently linked to the community conflict” and was, therefore, deemed inappropriate in communal areas of prisons. It said that while the level of offence caused by a particular emblem cannot alone set the limits of freedom of expression there was an acute risk of disorder in prisons in times of conflict. It distinguished the case of Vajnai v Hungary – where the conviction for wearing the “totalitarian symbol” of a red star was a violation (see the discussion on the ECHR Blog here) because there was no evidence of a risk of disorder in that case .
The Court also noted that the interference was relatively narrow as it applied solely to serving prisoners outside their cells. As a result, the Court held that a restriction on displaying the Easter lily was proportionate to the legitimate aim of preventing disorder or crime even though the applicant was being held in a segregated wing. It relied on the fact that
“the Equality Commission in Northern Ireland recommended that political or sectarian emblems should not be exhibited in the workplace so as to ensure that no worker would feel under threat on account of his or her religion or political opinion”.
The Article 14 complaint was dismissed because that prisoners wishing to wear a poppy on Remembrance Sunday were not in an analogous position to the applicant.
Article 10 cases involving the United Kingdom are relatively rare – usually only two or three judgments a year. This is the second such case in 2011. The result is unsurprising, particularly bearing in mind the views of the Equality Commission and the obvious sensitivity of “political symbols” in the Northern Ireland context. Despite the complaints of domestic critics – not just in the United Kingdom – the Court of Human Rights is sensitive to local conditions and issues in Member States.