AS TO THE ADMISSIBILITY OF
Application No. 33068/96
by Mark ADRIAN
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 June 1996 by
Mark ADRIAN against the United Kindgom and registered on
20 September 1996 under file No. 33068/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom, born in 1973,
and currently serving a prison sentence in HMP Blundestone in
Lewestoft. He is represented by Mr T.J. Bancroft of Messrs John Coplan
& Son, Solicitors in Sheerness.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. Particular circumstances of the case
At the relevant time, the applicant was serving a prison sentence
in HMP Swaleside, a Category B Training Prison housing convicted
prisoners requiring conditions of high security. On 26 April 1995, the
Governor of HMP Swaleside decided to transfer the applicant to the so-
called Restricted Regime unit located at Wing A1 at this prison on
grounds of unacceptable conduct.
It was the third time the applicant had been transferred to the
A1 Restricted Regime unit for adverse behaviour. The first time was on
1 January 1995. He was transferred back to a Normal Regime unit on
4 February 1995. The second period the applicant was subject to the
A1 Restricted Regime lasted from 27 February 1995 until 7 April 1995.
On 19 June 1995, the applicant was transferred back to a Normal
Regime unit. On 2 July 1995, the applicant was transferred for a fourth
time to the A1 Restricted Regime Unit. On 31 July 1995, he was
transferred back to a Normal Regime unit after having signed an
agreement as to his future conduct.
On 3 July 1995, the applicant and three others applied for
judicial review of the Governor's orders to transfer the applicant and
the three others to the A1 restricted regime on grounds that this
regime was unlawful.
In his application for judicial review, the applicant relied,
inter alia, on the findings in the 1994 Annual Report from the HMP
Swaleside Board of Visitors as to the A1 Restricted Regime.
Under the title "The A-1 Restricted Regime", this Report reads
as follows:
"The Board recognised that there was a need to assist staff with
the difficult and recalcitrant prisoners who were arriving at
Swaleside in increasing number. The Board have, however, from the
outset been seriously concerned at the regime which has been put
in place. Since last September, the Board have regularly raised
their serious concerns with the management and in November
requested a special meeting with the Governor, when it was made
absolutely clear that the Board were most unhappy with the
regime. The prisoners were, and still are, being held in solitary
confinement for 23+ hours per day. They have no association with
other prisoners (other than at exercise), they are precluded from
work and there is a "strip cell" on the spur apparently in
regular use. It is hard to see that they are in other than Rule
43 conditions - without limit of time - without the daily
supervision of a governor, or of a medical officer, or of the
chaplaincy, and certainly without the authorisation of the Board
of Visitors.*
The perception of the prisoners is that they are in cellular
confinement in an unsupervised segregation unit.
...
(*The Board are pleased to record that the Governors Rounds have been
introduced with effect from February 1995)."
On 13 December 1995, after the Governor had assured the
applicant's representative that it did not intend to reintroduce the
Restricted Regime in the same form as it operated prior to
17 July 1995, the application for judicial review was withdrawn by
agreement between the parties. The terms of this agreement were
incorporated in an Order of 11 January 1996. The applicant agreed to
withdraw his application for judicial review on the basis of the
understanding that the High Court refuses to make orders of the kind
initially sought unless they achieve some practical effect.
b. Relevant domestic law
The treatment of convicted prisoners is governed by the Prison
Rules of 1964, as amended, made under the Prison Act 1952. These Rules
are supplemented by Standing Orders and Circular Instructions made by
the Secretary of State which set out the detailed practice to be
followed in applying these Rules.
The Governor has a power to segregate prisoners pursuant to
Prison Rule 43 which, insofar as relevant, provides as follows:
"1. Where it appears desirable, for the maintenance of good
order or discipline or in his own interests, that a prisoner
should not associate with other prisoners, either generally or
for particular purposes, the Governor may arrange for the
prisoner's removal from association accordingly.
2. A prisoner shall not be removed under this Rule for a
period of more than 3 days without the authority of a member of
the Board of Visitors or of the Secretary of State. An authority
given under this paragraph shall be for a period not exceeding
one month ....
3. The Governor may arrange at his discretion for such a
prisoner as aforesaid to resume association with other prisoners,
and shall do so if in any case the medical officer so advises on
medical grounds."
Prison Rule 47 sets out a number of disciplinary offences which
a detainee may commit. Pursuant to Prison Rule 49, a detainee charged
with a disciplinary offence must be informed of the charge as soon as
possible and is entitled to be heard on the charge. Where an inmate has
been found guilty of a disciplinary offence, the Governor may order a
forfeiture of privileges for a maximum of 28 days, exclusion from
associated work for a maximum of 14 days or cellular confinement for
a maximum of 14 days.
On 7 September 1994, the so-called Restricted or Basic Regime as
opposed to the Normal or Standard Regime was introduced in HMP
Swaleside upon the Governor's decision. The Restricted Regime operated
until 17 July 1995. It was meant to create a systematic approach to the
granting and withholding of facilities for inmates with a view to
providing the latter with an incentive to good behaviour.
A placement in a Restricted Regime unit involved weekly
assessments with a review every 28 days. Unlike a regime imposed under
Prison Rule 43, a Restricted Regime did not require prior or subsequent
approval of the Board of Visitors.
Like the Regime under Prison Rule 43, there is no association
with other detainees under the Restricted Regime outside the exercise
hour. A placement under the Restricted Regime did further entail more
or less important restrictions as regards association with other
inmates, restrictions on leisure activities, work, library access,
contacts by telephone and permitted personal belongings.
Under the Normal Regime, detainees can spend £20 per week on
phone cards and, apart from the time they are locked in their cells,
they enjoy unrestricted access to the telephone without supervision.
Under the Restricted Regime, detainees were allowed one £2 or one £4
phone card per week, the latter at an officer's discretion, and they
were allowed one supervised telephone call per day.
A detainee subject to a Restricted Regime could either make a
phone call or use an iron or cell cleaning equipment. There were
further certain restrictions under the Restricted Regime as to a
detainee's visits.
On 17 July 1995, the Prison (Amendment) (No. 2) Rules 1995 S.I.
1598 entered into force. Prison Rule 4, as amended, sets rules for
prison Governors as to the granting or withdrawal of privileges in
respect of detainees. New national standards were further introduced
on 25 July 1995 by Instruction to Governors 74/1995.
In R. v. Deputy Governor of Parkhurst ex parte Hague ([1992] 1
A.C. 58), intolerable conditions of detention were recognised as
constituting a basis for an application for judicial review.
In proceedings before the Crown Court at Canterbury, to which the
applicant was not a party, which concerned criminal charges against a
number of inmates of HMP Swaleside in connection with their protest
against the conditions imposed on them while subject to the A1
Restricted Regime in HMP Swaleside, Judge Langdon held on 17 May 1996:
"..., I think the prisoners could be forgiven for thinking that
complaints to the Governor might be counter productive so far,
particularly, as far as the length of their stay in restrictive
custody was concerned, because it was after all the Governor's
baby.
As it is, I have not had to grasp the nettle as firmly as
at one stage it seemed I might have to. I find that there was a
significant erosion of the spirit of the prison rules, such as
to justify stigmatising that restrictive regime as oppressive.
The prisoners had something legitimate to complain about."
COMPLAINTS
1. The applicant complains that the Restricted Regime, entailing a
placement in an inadequately equipped, virtually unsupervised
segregation unit without a clear time-limit as to the duration of such
a placement, constitutes treatment contrary to Article 3 of the
Convention.
2. The applicant further complains that his placement in the
Restricted Regime unit was decided without respecting the procedural
safeguards prescribed by Article 6 of the Convention.
3. The applicant complains that his placement in the Restricted
Regime Unit constitutes an unjustified interference with his rights
under Article 8 para. 1 of the Convention, in particular in that this
interference is not foreseen in any statutory or secondary rules. The
applicant submits that this Regime was an unnecessary and
disproportionate way of enforcing prison discipline as a full
disciplinary code of offences, system of trial and punishments was
available to the Governor under the Prison Rules.
4. The applicant finally complains under Article 13 of the
Convention of his inability to obtain proper redress or compensation
for his suffering unlawfully.
THE LAW
The applicant complains that the decision to transfer him to the
A1 Restricted Regime unit in HMP Swaleside entailed violations of his
right not to be subjected to treatment contrary to Article 3 (Art. 3)
of the Convention, his right to a fair hearing under Article 6
(Art. 6) of the Convention, his right under Article 8 (Art. 8) of the
Convention to respect for his private life and correspondence and his
right to an effective remedy under Article 13 (Art. 13) of the
Convention.
The Commission notes that the applicant withdrew his application
for judicial review following the entry into force on 17 July 1995 of
an amendment of the Prison Rules. The question, therefore, arises
whether the applicant has complied with the requirement of exhaustion
of domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention.
The applicant has submitted that the High Court refuses to make
orders of the kind initially sought by the applicant unless they
achieve some practical effect. However, the Commission does not find
that the applicant has sufficiently established, on the basis of
relevant case-law, that the High Court would in fact have refused to
deal with the case (cf. No. 18598/91, Dec. 18.5.94, D.R. 78, p. 71; and
No. 19819/92, Dec. 5.7.94, D.R. 78, p. 88).
The Commission is, therefore, of the opinion that the applicant
has failed to comply with the requirement of exhaustion of domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention
as regards his complaints under Articles 3, 6 and 8 (Art. 3, 6, 8) of
the Convention.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
As to the remainder of the application, the Commission recalls
that a refusal by a court to deal with an arguable complaint on the
ground that there is no legal interest which requires determining has
been held to be incompatible with Article 13 (Art. 13) of the
Convention (No. 21353/93, B.C. v. Switzerland, Comm. Report 3.9.96,
paras. 63-68, currently pending before the Court). However, no refusal
of this kind has in fact occurred in the present case.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy