A.S.J. v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 23092/93

                      by A.S.J.

                      against the United Kingdom

      The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, 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 7 September 1993

by A.S.J. against the United Kingdom and registered on 15 December 1993

under file No. 23092/93;

      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 British citizen born in 1951 and currently

serving a prison sentence in Holme House Prison. The facts as submitted

by the applicant may be summarised as follows.

      In 1986, the applicant was sentenced to ten years' imprisonment

for two armed robberies, aggravated burglary, false imprisonment and

possession of an imitation firearm. He received a consecutive sentence

of five and a half years in 1990 for taking a prison officer hostage

and a further two and a half years consecutive for taking a prison

governor hostage in 1991.

      Following an incident on 8 October 1992, the applicant was

charged under the Prison Rules with assault on another prisoner. After

internal prison adjudication, the applicant received 25 days loss of

remission which on appeal was reduced to 7 days. The applicant's

solicitors' application for legal aid to seek judicial review of the

decision was rejected on 15 May 1993 and the appeal against this

decision refused also.

      The applicant has since October 1992 been transferred frequently

from prison to prison.  He was moved to Liverpool (9 October 1992),

Hull (4 November 1992), Garth  (6 November 1992), Full Sutton

(2 December 1992), Lincoln (4 January 1993), Bullingdon (February

1993), Woodhill Special Unit (March 1993) Wormwood Scrubs (March 1993),

Woodhill Special Unit, Brixton, Belmarsh, Wandsworth, Whitemoor, Hull

(24 August 1993), Holme House Prison (on or about February 1994 to

present). He was kept in segregation during this time for a number of

renewable monthly periods.

      On the applicant's account, on 7 December 1992 he smashed the

porcelain sink in his cell with the intention of using the prison

disciplinary proceedings to complain about staff. He was removed to a

strip cell and his clothes removed. When the applicant then cracked,

in an attempt to smash, the plastic guard on the window of the cell,

he was placed in a body belt and ratchet handcuffs. He was kept

segregated and restrained until about lunchtime the following day

though restraints were loosened to allow him to take meals.

      On 16 December 1992 following an incident in which the applicant

had kicked at the wall of his cell loosening the panels, he was

returned to a strip cell and restrained in a body belt.

      On 10 January 1993, while in Lincoln prison the applicant lost

his temper and destroyed the toilet  seat in his cell. He was removed

to a special cell which had no furniture. There was no functioning call

bell in the cell and the applicant had difficulty in attracting staff

attention when he required drinking water. On 11 January 1993, he was

placed in restraints which were not removed until 13 January. He was

charged with a number of prison disciplinary offences over this period

including assault of a prison officer.

      Following an incident on or about 25 March 1993, the applicant

received injuries. He was charged under prison discipline with assault

of a prison officer. He alleged that he had been injured by a prison

officer and was removed handcuffed to a hospital for X rays to be

taken.

      In reply to complaints by the applicant's solicitors, the Home

Office replied on 19 April 1993 that special cells and restraints were

only used when the safety of the prisoner, staff or the fabric of the

building was under threat. On 7 December 1992 since the applicant was

violent and threatening, restraints were used to prevent him causing

damage to his cell or to himself. On 11 January 1993 restraints were

used following an attempt by the applicant to take a member of staff

hostage. It was acknowledged that the special cell at Lincoln should

have been equipped with a working call bell and this had now been

repaired.

      In reply to an enquiry by a Member of Parliament on behalf of the

applicant in reference to his frequent moves between prisons, the Home

Office on 3 August 1993 replied:

      " has been in custody since 1986 and has

      always been a difficult prisoner.  His disciplinary record

      is appalling.  He has lost almost two years remission as

      well as receiving a further sentence of two years in 1991

      as a result of his part in a hostage taking incident at

      Frankland prison in 1990.  As a direct result of his

      difficult behaviour he was placed in Hull special units in

      March 1991 and for a period of almost two years appeared to

      settle.  His removal from Hull followed his involvement in

      an assault on another inmate.  For whilst special units are

      designed to cater for inmates whose behaviour is

      disruptive, conflict between individual prisoners in these

      small units makes them almost impossible to manage

      successfully.  There are only three such special units and

      it was decided that should be given the

      opportunity of a place at the special unit in Woodhill, a

      prison at Milton Keynes.  Regrettably there was a six month

      wait for the place in Woodhill unit and during that period

      found it impossible to settle at any prison

      and had to be removed from Garth to Full Sutton and then to

      Lincoln and Bullingdon.  At each of these establishments he

      threatened staff.

      He was finally moved to the Woodhill unit when it opened in

      February of this year.  His initial stay there lasted

      approximately two weeks before he rejected the unit and in

      consequence was removed to Wormwood Scrubs.  During his

      stay at the Scrubs efforts were made by Woodhill staff to

      persuade him to return to the unit, efforts which were

      partially successful in that he agreed to give Woodhill

      another try but on his return almost immediately refused to

      cooperate with the regime.

      was then transferred to Brixton and

      subsequently to Belmarsh.  He is currently at HM Prison,

      Wandsworth.  It is not the policy of the Prison Service to

      keep prisoners on the move.  It is obviously better for all

      concerned if prisoners can settle on ordinary location.

      However, given our experience of past

      behaviour it is prudent from a Tactical Management point of

      view to make preparations to move him to another prison

      should his behaviour prove difficult and relationships in

      any prison break down.  Belmarsh were quite content to keep

      and I understand offered him the

      opportunity to remain there.  The latest move to HM Prison,

      Wandsworth was at his own request.

      In the long term attempts will be made to see if       applicant> can be settled and the special unit selection

      committee will continue to keep him under monthly review

      with a possibility of granting a place in one of the units

      as soon as it is practicable."

      The applicant's solicitors sought counsel's advice concerning the

possibility of action for use of the restraints. In her opinion of 14

October 1993, counsel advised that it did not appear that the prison

rules had been breached in the applicant's case and that given the

behaviour to which the applicant himself admitted a court would be

unlikely to impugn the authorities' actions to restrain him. A claim

in negligence for damages would be likely to fail given the applicant

made no claim of injury to his mental health and the only physical

evidence of injury were minor abrasions to his wrists.

COMPLAINTS

      The applicant complains of the constant transfers to which he has

been subjected. He submits that this disrupted his correspondence and

that he was unable to pursue an educational correspondence course.

      The applicant complains that the special cell in which he was

held in Lincoln was, contrary to Prison Rules, not equipped with a call

bell which permitted a prisoner to communicate with staff.

      The applicant further complains of the use of ratchet handcuffs

on body belts which he submits are inhuman and dangerous.

      The applicant invokes Article 3 of the Convention in respect of

the above.

THE LAW

      The applicant complains of aspects of his treatment in prison.

He complains of the repeated transfers between prisons, the use of

ratchet handcuffs and the lack of a call bell in a special cell. He

invokes Article 3 (Art. 3) of the Convention which provides:

      "No one shall be subjected to torture or to inhuman or

      degrading treatment or punishment."

      The case-law of the Convention organs establishes that ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3) of the Convention. Further, the

Court has held that the suffering occasioned must attain a certain

level before treatment can be classified as inhuman. The assessment of

that minimum is relative and depends on all the circumstances of the

case, such as the duration of the treatment, its purpose and its

physical or mental effects (see eg. Eur. Court H.R., Ireland v. the

United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65,

para. 162).

      The applicant complains that he has been subject to a series of

transfers from prison to prison, which practice he states has been

criticised in official reports and may have psychological effects

similar to those of long term isolation. He has also on occasion been

restrained in ratchet handcuffs attached to a belt, the use of which

he submits is inhuman and dangerous. He also refers to the failure to

provide a special cell with a call bell with which he could communicate

with prison staff, such bells being necessary since the cells are

soundproofed and there is no other means of effectively attracting

attention.

      The Commission notes with regard to the transfers that according

to the Home Office explanation to a Member of Parliament the frequency

was the result of the applicant's violent behaviour and his failure to

co-operate with the prison regime. The Commission notes that a number

of the transfers were at the applicant's own request or with his

agreement. It notes that the applicant makes no complaint as to any

possible ill-effects on his physical or mental health as a result of

the transfers in his case.

      As regards the use of ratchet handcuffs on the applicant, the

Commission notes that this was in response to incidents in which the

applicant was, even on his own account, violent and threatening. The

Commission recalls that counsel advised that the use of the handcuffs

was in accordance with the prison rules and that since there was no

significant mental or physical damage caused, no action for negligence

would succeed. The Commission would  comment that the use of mechanical

restraints of this type must be subject to strict controls limiting

their use to when unavoidable and controlling the duration of use.

Having regard to the relatively short duration of the use and the

absence of any more than minimal ill-effects in this case, the

Commission finds no indication that the restraints were used in a

manner which was abusive or otherwise incompatible with the

requirements of the Article 3 (Art. 3) of the Convention.

      In respect of the applicant's complaint about the lack of a call

bell in a special cell, the Commission notes that the authorities

acknowledged that this was a fault on their part and have taken steps

to remedy it. While the applicant was detained in the cell for several

days without a bell, it is not apparent that he as a result suffered

any long term ill-effects.

      The Commission concludes that the applicant's complaints fail to

disclose treatment of such severity as to fall within the scope of

Article 3 (Art. 3) of the Convention.

      The Commission notes that the applicant complains also that his

frequent transfers from prison to prison disrupted his correspondence

and affected his ability to pursue a correspondence course. The

Commission has examined these complaints under Article 8 (Art. 8) of

the Convention (freedom of correspondence) and Article 2 of Protocol

No. 1 (P1-2) (right to education) but finds no issue arising under

those provisions.

      It follows that 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.

Secretary to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)

 

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