BAMBER v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 33742/96

                      by Jeremy BAMBER

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 11 September 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 August 1996 by

Jeremy BAMBER against the United Kingdom and registered on

12 November 1996 under file No. 33742/96;

     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 British citizen born in 1961 and currently

detained in HM Prison Woodhill, Buckinghamshire.  He is represented

before the Commission by Mr. R. Price, a solicitor practising in

Birmingham.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

a)   The particular circumstances of the case

     On 28 October 1986 the applicant, who has consistently maintained

his innocence, was convicted of murder and sentenced to life

imprisonment.  His appeal against conviction was dismissed on the

28 March 1989.  In 1992 the applicant petitioned the Home Secretary to

refer his case to the Court of Appeal.  The Home Secretary declined to

do so.  In November 1994 the applicant successfully challenged the

refusal by the Home Secretary to disclose his reasons for not referring

the case to the Court of Appeal.

     On 22 May 1995 the applicant participated in a programme on Talk

Radio by placing a telephone call from prison.  The applicant raised

issue with the assertion made by the programme's host that a convicted

person should serve the entirety of the sentence imposed by the trial

judge without remission, and thus by way of example a life sentence

should mean life imprisonment.  The applicant considered such an

approach ignored the fact that remission provided an incentive to good

behaviour, that it was unfair in the case of murder since life

imprisonment was mandatory irrespective of the circumstances of the

crime, and that in any event generalisations were inappropriate and

each case should be judged on its own facts.

     This exchange triggered a parliamentary question to the Home

Secretary concerning prison policy in relation to prisoners' contact

with the media.  The Home Secretary responded by written answer stating

that it was inappropriate for prisoners to participate in radio phone-

in programmes and that immediate steps would be taken to amend the

standing order governing prisoners' communications to reflect this

policy.

     On 21 June 1995 Standing Order 5 was amended.  The effect of the

amendment (see below) was to preclude prisoners from contacting the

media by telephone save with permission, which would only be granted

in exceptional circumstances.  Prisoners were notified of the amendment

as follows :

     "To minimise the risk of prisoners improperly using the

     card phone system to contact the media and the difficulties

     in curtailing such calls because of the immediacy of the

     transmission, Standing Order 5 has been amended to disallow

     prisoners from making any communication of this kind.  For

     the purpose of this Instruction "the media" should be

     construed as a person or place associated with broadcasting

     or publication of material.  Any breach of this instruction

     will be a disciplinary offence under Prison Rule 47(20) or

     Rule 50(20) of the YOI rules."

     On 20 September 1995 the applicant telephoned the News Editor of

the London News Agency in order to discuss his conviction.  The

telephone call was not made for the purposes of immediate or subsequent

transmission, but may have formed the basis of, or subsequently have

been incorporated within a newspaper article.  On 21 September 1995 the

applicant was disciplined for breaching Standing Order 5G rule 2B and

fined.  The fine was suspended for three months on the applicant

undertaking not to breach the standing order pending proceedings to

challenge its lawfulness.

     On 6 November 1995, prisoners at HM Prison Full Sutton, where the

applicant was then detained, were given personalised identification

numbers in lieu of telephone cards.  Each prisoner was restricted to

telephoning 20 previously approved telephone numbers.  The applicant

sought approval for the telephone numbers of two journalists, Ms S. P.

and Mr. J. R., employed by the London News Agency.  The applicant was

informed that he would not be permitted to contact either journalist

without first making a written application to the prison governor, and

then only in the event that he undertook not to discuss anything for

use in the media.

     On 15 November 1995, the applicant sought leave from the High

Court to apply for judicial review in order to challenge the

restriction in his access to the media consequent on Standing Order 5G

rule 2B.  In his response to the application for leave, the Secretary

of State, through the officer responsible for prison policy relating

to prisoners' communications, outlined the basis for the restriction

in prisoners' communications with the media in the following terms :

           "The policy which lies behind general

     prohibition      communication consists of serious representations about

     conviction or sentence or forms part of a serious comment

     about crime, the process of justice or the penal system> is

     I believe clear.  Where an inmate has, like the

     , been convicted of serious offences, it is

     likely that any public discussion by him about those

     offences may cause serious distress to his victims or their

     surviving relatives or may indeed attract general public

     outrage.  It is for this reason among others that written

     correspondence is subject to the severe restrictions

     imposed by paragraph 34 of Standing Order 5 section B.

           The provisions of Standing Order 5 Section B in

     relation to correspondence can be enforced by reason of the

     fact that the written correspondence of certain categories

     of prisoners, including category A prisoners like the

     applicant ... are required to be read before dispatch, and

     if they contravene Standing Order 5 Section B, prisoners

     will not be permitted to send them. ... The main point is

     that written correspondence is capable of being vetted for

     compliance with the Standing Order before despatch. ...

           ... The policy which lay behind the introduction of

     card-phones into prisons, despite their obvious risks, was

     primarily to enable prisoners to take responsibility for

     keeping more closely in touch with family and friends, so

     that they would more easily reintegrate into society on

     their release.  However the difficulty about allowing the

     use of the card-phone system for calls to the media ... is

     the immediacy of the form of communication: once a

     conversation has taken place, it cannot be recalled and

     although it can be monitored, it is impracticable

     effectively to control the conversation once it has

     commenced.  There is no opportunity for the Governor or

     other responsible official to take time to reflect on the

     propriety of the communication as with a letter, or seek

     advice.  It was found by the prison Service that telephone

     calls were being made to the media in breach of the rules.

           ... It was further noted that there was another aspect

     to "immediacy" in this context.  It was well known that the

     live voice heard on radio or television might well make a

     substantially greater impact on the audience than would the

     same message carried on print.  It was considered that the

     public and in particular the victims of crime and their

     immediate families who might already have sustained serious

     distress as a result of the crime, might experience further

     distress or outrage upon hearing the live voice of the

     convicted and imprisoned offender on the radio or

     television, offering a one-sided protestation of his

     innocence and alleging expressly or impliedly that the

     victim had been mistaken or untruthful.  The Secretary of

     State believed that it was necessary to protect the

     legitimate interests of persons likely to be affected by

     such broadcasts and that in doing so he would be reflecting

     the views of law-abiding citizens who would be outraged at

     the prospect of a live platform on television and radio

     made freely available to those convicted of serious crimes

     and serving prison sentences.

           The only effective remedy in order to avoid such

     distress was to prohibit telephone calls to the media being

     made without the prior approval of the Governor, but

     because effective control of a telephone call ... was

     impracticable such approval would normally be withheld.  It

     was considered that if such a prohibition was imposed, this

     would not impinge disproportionately on a prisoner's

     freedom of expression, because he would retain the right to

     communicate with the media ... by correspondence."

     Leave to apply for judicial review was refused by a judge of the

High Court on 29 November 1995.  In the course of his reasoning the

judge stated :

           "The difficulty about the use of the telephone ... is

     that it is not possible for the authorities to know about

     or monitor what is being said until after is has been said.

     This is more particularly the case with communications of

     the sort that gave rise to this problem in the first place,

     that is to say live communications to broadcasting media.

     It is not possible to monitor or know the content until the

     actual statement has been made.  Prisoners' written

     correspondence, and certainly the correspondence of

     prisoners in the category that falls into,

     is read before it leaves the prison, for the precise reason

     of ensuring it complies with the rules.  Again, nobody to

     my knowledge has ever sought to say that that in itself is

     offensive.  It may be, of course, that issues arise of a

     different sort about what may be impeded from leaving, but

     that is not the present question.  In the case of telephone

     communications, in practical terms it is not possible for

     them to be monitored.  It would, of course, be possible for

     the prison authorities to spend a great deal of time

     listening in on the telephone and to interrupt, I suppose,

     if matters were said which they felt fell outside the

     rules.  I could not think that would be a reasonable use of

     scarce official time."

     The applicant renewed his application for leave before the Court

of Appeal.  The Court of Appeal refused the applicant leave on

15 February 1996.

b)   Relevant domestic law and practice

     Control over and responsibility for prisons and prisoners is

vested in the Home Secretary who, pursuant to s. 47 of the Prison Act

1952 :

     "may make rules for the regulation and management of

     prisons ... and for the classification, treatment,

     employment, discipline and control of persons required to

     be detained therein."

     The rules currently in place are the Prison Rules 1964.

Rule 33(1) states that the Secretary of State :

     "may, with a view to securing discipline and good order or

     the prevention of crime or the interests of any persons,

     impose restrictions, either generally or in a particular

     case, upon communications between a prisoner and other

     persons."

     The regulation of and restrictions on prisoners' communications

is governed by Standing Order 5.  As regards written correspondence,

Standing Order 5 provides under section B, in respect of contact with

the media, inter alia, that :

     "34.  General correspondence      between an inmate and his or her lawyer> may not contain

     ...

     (9)   material which is intended for publication or use by

     radio or television (or which, if sent, would be likely to

     be published or broadcast) if it ...

           c.    is about the inmate's own crime or past offences

           or those of others except where it consists of serious

           representations about conviction or sentence or forms

           part of serious comment about crime, the process of

           justice or the penal system."

     In respect of prisoners' use of telephones, section G of Standing

Order 5 provided that :

     "2.   Inmates are not permitted to make calls to or via the

     operator or receive incoming calls, or to communicate by

     telephone matters which they would not be allowed to

     include in correspondence under the terms of      Order> 5B 34."

     Section G was amended on 21 June 1995 to include a further

paragraph which provides:

     "2B.  Inmates are not permitted to make calls to the media

     if it is intended, or likely, that the call itself or the

     information communicated will be used for publication or

     broadcast.  Any prisoner wishing to contact the media by

     telephone should make a written application for permission

     to do so, but such applications will only be approved in

     wholly exceptional circumstances.  Inmates should instead

     communicate such information in written correspondence,

     subject to the provisions of standing order 5B and in

     particular paragraph 34(9)."

     The contact of prisoners with the media is further governed by

section A of Standing Order 5 which provides :

     "37.  Visits to inmates by journalists or authors in their

     professional capacity should in general not be allowed ...

     38.   Where, exceptionally, a journalist or author is

     permitted to visit an inmate in his or her professional

     capacity ... he or she will be required to give a written

     undertaking that no inmate will be interviewed except with

     the express permission in each case of the governor and the

     inmate concerned, that the interviews will be conducted in

     accordance with such other conditions as the governor

     considers necessary, and that any material obtained at the

     interview will not be used for professional purposes except

     as permitted by the governor."

COMPLAINTS

     The applicant complains that the restriction in his contact with

the media by telephone amounts to an interference with his right to

freedom of expression under Article 10 para. 1 which is not justified

under the terms of para. 2 thereof.  Specifically, the applicant

complains that the restriction prevents him from communicating

effectively with the media.  The applicant submits that since the

restriction precludes him from making serious representations about his

wrongful conviction, it cannot be justified as having as its object one

of the legitimate aims identified in Article 10 para. 2; alternatively,

that the restriction is too wide since it prevents the applicant from

contacting the media by telephone irrespective of whether the call is

for transmission.

THE LAW

     The applicant complains that the restriction in his contact with

the media by telephone constitutes an interference with his right to

freedom of expression in breach of Article 10 (Art. 10) which, so far

as relevant, provides :

     "1.   Everyone has the right to freedom of expression.  This

     right shall include freedom to hold opinions and to receive

     and impart information and ideas without interference by

     public authority ...

     2.    The exercise of these freedoms, since it carries with

     it duties and responsibilities, may be subject to such

     formalities, conditions, restrictions or penalties as are

     prescribed by law and are necessary in a democratic

     society, in the interests of ... public safety, for the

     prevention of disorder or crime, for the protection of

     health or morals, for the protection of the reputation or

     rights of others ..."

     The applicant, whilst not identifying the grounds upon which he

challenges his conviction, states that the restriction on his right to

telephone the media prevents him from communicating effectively with

the media about his wrongful conviction.  The applicant submits that

the restriction cannot be justified as having one of the legitimate

aims identified in Article 10 para. 2 (Art. 10-2); alternatively that

the restriction is excessive since it applies irrespective of whether

the call is to be transmitted.

     The means of communication apart, the applicant does not complain

that the restriction in the scope of his communications with the media

- which in any case is limited to "serious representations about

conviction or sentence or forms serious comment about crime, the

process of justice or the penal system" - is such as to raise any issue

under Article 10 (Art. 10).  Accordingly, the Commission's examination

in the present case are limited to a determination of whether the

restriction on the applicant's access to the media by telephone is such

as to constitute an interference with his right to freedom of

expression in breach of Article 10 (Art. 10).

     The Commission recalls that the right to freedom of expression

does not require a State to secure to an individual a general and

unfettered right of access to a particular medium or means of

communication (see, inter alia, No. 9297/81, Dec. 1.3.82, D.R. 28,

p. 204; and No. 25060/94, Dec. 18.10.95, D.R. 83, p. 66).  Nonetheless,

where, as in the present case, the State imposes restrictions on an

individual's access to a particular means of communication which, but

for the restriction, he would have enjoyed, the Commission considers

that such a restriction may constitute an interference with the

individual's right to freedom of expression.

     In this regard the Commission recalls that freedom of expression

constitutes one of the essential foundations of a democratic society

(see, inter alia, Eur. Court HR, Handyside v. the United Kingdom

judgment of 7 December 1976, Series A no. 24, p. 23, para. 49), and

notes that any restriction in the means available to an individual for

communicating the relevant information may be such as to inhibit its

effective communication.  The Commission also does not underestimate

the role which the media may play in cases where there has been a

miscarriage of justice.

     In the present case the effect of the restriction is to prevent

the applicant from communicating with the media by telephone, whether

for the purposes of direct transmission or subsequent publication, any

grievance concerning his conviction or sentence.  Whilst the applicant

has not been denied access to the media in that he is not precluded

from contacting the media by letter (see Standing Order 5 section B

rule 34(9)) and may, in more limited circumstances, be interviewed by

the media (see Standing Order 5 section A rules 37 and 38) the

Commission considers that in the circumstances the restriction on the

applicant's right to communicate with the media by telephone

nonetheless amounts to an interference with the his right to freedom

of expression under Article 10 para. 1 (Art. 10-1).

     The Commission must therefore go on to consider whether the

interference was prescribed by law and necessary in a democratic

society in accordance with one or more of the aims identified in

Article 10 para. 2 (Art. 10-2).

     Although it does not appear that Standing Order 5 section G rule

2B has the force of law in domestic terms, recalling the decision of

the Court in Silver and others v. the United Kingdom (judgment of

25 March 1983, Series A no. 61, pp. 33-36, paras. 86-90 and 94; see

also No. 18714/91, Dec. 9.5.94, D.R. 77, p. 42) and having regard to

the notice given to prisoners of the restriction in their contact with

the media, the Commission finds that the interference in question was

a sufficiently clear and foreseeable application of section 33(1) of

the Prison Rules 1964 as to have been prescribed by law within the

meaning of Article 10 para. 2 (Art. 10-2).

     The Commission also considers that the restriction in question

pursued proportionately a legitimate aim under the terms of Article 10

para. 2 (Art. 10-2) in that it sought to control communications with

the media with a view to the prevention of disorder, and the protection

of morals and/or the rights and freedoms of others.

     As to whether the interference was necessary in a democratic

society, the Commission recalls that the interference must correspond

to a pressing social need and be proportionate to the legitimate aim

pursued (see Eur. Court HR, Handyside v. the United Kingdom, loc. cit.,

pp. 22-23, paras. 48-49; and Eur. Court HR, Silver and others v. the

United Kingdom judgment, loc. cit., pp. 37-38, para. 97).  In the

result, the Commission must be satisfied, allowing for a State's margin

of appreciation, that the interference was necessary having regard to

the facts and circumstances prevailing in the specific case before it

(see inter alia Eur. Court HR, The Sunday Times v. the United Kingdom

judgment of 26 April 1979, Series A no. 30, pp. 40-41, para. 65).

     The Commission recalls that in the present case the State

withdrew the right of prisoners to contact the media by telephone as

it was considered impracticable effectively to control telephone calls

to the media; and that where the call was transmitted this might cause

distress to the victims or their families.

     The Commission does not consider that the distress which victims

or their families might experience necessarily justifies the scope of

the restriction which goes so far as to prevent the applicant from

making even serious representations to the media by telephone about his

conviction, and irrespective of whether the call would be transmitted.

     Accordingly, the Commission considers the issue in the present

case to be whether the restriction was justified as a necessary

interference with the applicant's right to freedom of expression having

regard to the State's assessment that it was impracticable effectively

to control communication with the media by telephone.

     In this respect, the Commission recalls that the assessment of

whether the interference was necessary must be made having regard to

the ordinary and reasonable requirements of imprisonment, and that some

measure of control over the content of prisoners' communications  - the

scope of which is not in issue in the present case - is not in itself

incompatible with the Convention (see Eur. Court HR, Golder v. the

United Kingdom judgment of 21 February 1975, Series A no. 18, p. 21,

para. 45; and Silver and others v. the United Kingdom judgment, loc.

cit.).

     The Commission accepts that for any control to be meaningful it

must be capable of being exercised effectively, and in the present case

the Commission does not find any sufficient grounds to dispute the

assessment of the prison authorities that it was impracticable to

exercise effective control over communications with the media by

telephone.

     The applicant in the present case is, moreover, not precluded

from any direct contact with the media for the purposes of making

serious representations about his conviction and any perceived

miscarriage of justice in his case; nor is it contended on his behalf

that there is any restriction in his lawyers effective access to and

use of the media in this regard.

     In these circumstances the Commission finds that the interference

with the applicant's right to freedom of expression can be regarded as

necessary and pursued a legitimate aim within the terms of Article 10

para. 2 (Art. 10-2).  Accordingly, the Commission concludes that there

has been no appearance of a violation of Article 10 (Art. 10).

     It follows, therefore, that the application is 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                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber

 

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