Application No. 13590/88
Thomas CAMPBELL
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 12 July 1990)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-16) 1
A. The application (paras. 2-4) 1
B. The proceedings (paras. 5-12) 1
C. The present Report (paras. 13-16) 2
II. ESTABLISHMENT OF THE FACTS (paras. 17-38) 4
A. Particular circumstances of the case 4
(paras. 17-28)
B. Relevant domestic law (paras. 29-38) 6
a. In general (paras. 29-30) 6
b. Correspondence with legal advisers
(paras. 31-35) 6
c. Correspondence concerning proceedings
under the European Convention on Human Rights
(paras. 36-38) 8
III. OPINION OF THE COMMISSION (paras. 39-77) 9
A. Points at issue (para. 39) 9
B. Opening of correspondence with the applicant's
solicitor (paras. 40-62) 9
a. Opening of correspondence with the solicitor
concerning contemplated and pending
proceedings (paras. 49-56) 11
b. Opening of general correspondence with
the solicitor (paras. 57-62) 12
C. Opening of correspondence with the Commission
(paras. 63-74) 13
a. Article 8 of the Convention (paras. 64-72) 13
b. Article 25 of the Convention (paras. 73-76) 15
D. Recapitulation (para. 77) 16
Partially dissenting opinion of Mr. H.G. Schermers 17
Partially dissenting opinion of Sir Basil Hall
joined by Mrs. J. Liddy 19
APPENDIX I History of the proceedings 20
APPENDIX II Decision on the admissibility 22
of the application
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is Thomas Campbell, a British citizen born in
1952. He is currently serving a sentence of life imprisonment in
Barlinnie prison, Glasgow. The applicant is represented before the
Commission by Mr. John Carroll, a solicitor practising in Glasgow.
3. The application is directed against the United Kingdom. The
Government are represented by their Agent, Mr. Michael Wood of the
Foreign and Commonwealth Office, London.
4. The case relates to the applicant's complaints that his
correspondence with his solicitor and the European Commission of Human
Rights has been opened by the prison authorities. The application
raises issues under Articles 8 and 25 of the Convention.
B. The proceedings
5. The application was introduced on 14 January 1986 and
registered on 5 February 1988.
6. On 13 July 1988 the Commission decided, pursuant to Rule 42
para. 2 (b) of its Rules of Procedure, that notice of the application
should be given to the respondent Government and that they should be
invited to present, before 10 November 1988, their written observations
on the admissibility and merits of the application.
7. The Government sent their written observations on 1 December
1988, after an extension of the time-limit for their submission had
been granted by the President of the Commission. The applicant's
representative submitted the applicant's written observations in reply
on 7 March 1989.
8. Further information was submitted by the applicant on 12 May
1989 and by the Government on 23 May 1989.
9. On 17 March 1989, the Commission decided to grant legal aid to
the applicant.
10. On 7 September 1989 the Commission decided, pursuant to Rule 42
para. 3 (b) of its Rules of Procedure, to invite the parties to make
further oral submissions at a hearing on the admissibility and merits
of the applicant's complaints concerning the opening of his
correspondence.
At the hearing, which was held on 8 November 1989, the
applicant was represented by Mr. John Carroll. The Government were
represented by their Agent, Mr. Michael Wood, Mr. MacKay, QC,
Mrs. MacDonald (Scottish Office) and Mr. Reeves (Scottish Home and
Health Department), Advisers.
11. On 8 November 1989 the Commission declared the application
inadmissible as regards the applicant's complaints concerning refusal
of legal aid and his complaint concerning the opening of a letter to a
Member of Parliament and admissible the applicant's complaints
concerning interference with his correspondence. The Commission also
decided to examine further whether the opening of the applicant's
correspondence from the Commission was compatible with Article 25
para. 1 of the Convention. The parties were then invited to submit any
additional observations on the merits of the application. The
applicant submitted further observations on 5 February 1990 and the
Government on 23 February 1990. The Commission considered the state
of proceedings on 12 May 1990.
12. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. In the light of the parties'
reactions, the Commission now finds that there is no basis on which a
friendly settlement can be effected.
C. The present Report
13. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mrs. J. LIDDY
14. The text of the Report was adopted by the Commission on
12 July 1990 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
15. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under the
Convention.
16. A schedule setting out the history of the proceedings before
the Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
17. The applicant is serving a term of life imprisonment for
murder following his conviction on 10 October 1984.
18. Since his imprisonment the applicant has been advised by his
solicitor in respect of:
1. an action for damages for injuries sustained on 3 November 1985;
2. a claim against the Secretary of State for damages in respect
of injuries sustained on 25 April 1987;
3. a claim against the Secretary of State in respect of
infestation of lice while in the hospital wing of Peterhead
Prison in November 1985;
4. a possible prosecution by the police (arising out of an
incident in Barlinnie Prison on 25 April 1987);
5. a denial of communication with the solicitor following the
said incident on 25 April 1987;
6. the Prison Department's denial of the applicant's right to
free and unrestricted correspondence between himself and his
legal advisers on all of the above matters;
7. an application (Application No. 12323/86) to the European
Commission of Human Rights concerning inter alia his solitary
confinement and access to his solicitor while in custody in
hospital;
8. the present application.
19. The applicant states that throughout his detention, from 1985
onwards, his correspondence with his solicitor and the Commission has
regularly been interfered with, in being opened and screened by the
prison authorities.
20. On 16 September 1985, the applicant's solicitor wrote to the
Governor, HM Prison Peterhead, asking that all correspondence between
him and his client should pass without interference. After the
Deputy Governor of Peterhead had discussed the matter with the
applicant, he wrote on 23 September 1985 to the applicant's solicitor
indicating that outgoing mail from the applicant to his solicitor
concerning his petition to the Commission, if properly marked, would
not be opened.
21. In a further letter dated 4 October 1985 the solicitors wrote
to the Governor of Peterhead Prison again asking for Standing Order M
to be waived regarding all solicitors' correspondence. On 15 October
1985 the Governor replied that incoming mail from the solicitor
concerning an application to the Commission, suitably identified,
would be opened in the presence of the prisoner and handed to him
unread. The Governor explained that this arrangement would not apply
to solicitors' correspondence about matters other than the application
to the Commission.
22. On 24 October 1985 the applicant's solicitor wrote to the
Scottish Home and Health Department again requesting that all the
correspondence between him and his client should pass unopened.
23. On 29 October 1985 the applicant petitioned the Secretary of
State complaining about censorship of his mail with his solicitor. In
their reply to this and other petitions on 19 June 1986 the Scottish
Home and Health Department advised the applicant that his solicitor
had been told on 15 October 1985 that correspondence "in respect of
ECHR procedures" should be clearly marked to ensure privacy but that
any other correspondence between an inmate and his legal adviser was
subject to the normal rules.
24. On 16 June 1986 the Scottish Home and Health Department wrote
to the applicant's solicitor confirming the arrangements for
solicitors' correspondence concerning matters before the Commission
but reaffirming that other correspondence was still subject to normal
rules.
25. In his petition dated 19 June 1986 the applicant again
complained that incoming mail from his solicitor was scrutinised. He
repeated these complaints in his petition dated 27 June 1986. In
these petitions, the applicant also drew the attention of the
authorities to the fact that correspondence from the European
Commission of Human Rights was being opened. The reply to these
petitions received by the applicant on 15 July 1986 referred the
applicant to the existing arrangements. In his petition of
30 December 1986 he complained that a letter from a firm of solicitors
was opened before he received it.
26. The Scottish Home and Health Department stated in a letter
dated 16 June 1987 to the applicant's solicitor that all
correspondence would continue to be opened except that concerning a
complaint to the European Commission of Human Rights. However,
despite this statement correspondence to and from the Commission has
been opened. The applicant refers to letters dated 20 June 1985,
17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986, 22 May
1986, 7 January 1987, 4 June 1987, 18 August 1987, 2 October 1987,
7 October 1987 and 3 November 1987 from the Commission which show the
prison censor's mark on the top right hand corner. The Government
accept that five of these letters (17 July 1985, 9 October 1985, 20
November 1985, 22 April 1986 and 18 August 1987) were opened. It
considers that three other letters (20 June 1985, 22 May 1986 and 7
January 1987) may have been opened but that it is not possible to
identify the markings. Of two remaining letters (2 and 7 October
1987) which the applicant alleges were opened the Government state
that there are no identificable marks and no opinion is expressed as
to whether they have been opened or not.
27. A letter sent by the applicant to his Member of Parliament
dated 25 August 1987 also received the same scrutiny.
28. The applicant's solicitors applied for legal aid to bring
civil proceedings in respect of the interference with the applicant's
correspondence. Legal aid was refused on 7 October 1986 by the
Supreme Court Legal Aid Committee on the ground that the applicant had
no probable cause of action. The Committee also noted that the
applicant was not being denied visits from his legal advisers and that
he has not indicated that he was unable to give instructions verbally
to his advisers. The applicant's appeal against this decision was
refused on 5 December 1986 by the Legal Aid Central Committee of the
Law Society of Scotland.
B. Relevant domestic law and practice
a. In general
29. The system of prisons in Scotland is governed by the Prisons
(Scotland) Act 1952 (c.61), section 35(1) of which provides that:
"the Secretary of State 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."
30. In exercise of his powers under section 35 the Secretary of
State has made the Prison (Scotland) Rules 1952 (S.I. 1952/565) ("the
Rules"). To supplement these statutory provisions the Secretary of
State issues advice and instructions to the Governors of prisons by
way of administrative orders, collectively known as the Prison
(Scotland) Standing Orders, and administrative circulars.
b. Correspondence with legal advisers
31. Communications between prisoners and their legal advisers and
others are governed principally by Rule 74 of the Rules. Rule 74(4)
provides that every letter to or from a prisoner shall be read by the
Governor or by an officer deputed by him for that purpose. The only
exceptions to this general rule are letters of request or complaint to
the Secretary of State or the Visiting Committee which may not be
opened by the Governor if they are sealed by the prisoner.
32. In the case of remand prisoners, Rule 124(2) provides that they
shall be allowed to write to their legal advisers. Under Rule 124(3)
any confidential written communications prepared by such a prisoner as
instructions for his legal adviser may be delivered to the legal
adviser without being examined by any officer of the prison unless the
Governor has reason to suppose that it contains matters not relating
to such instructions. Under Rule 127 this facility is also available
to convicted prisoners who are the subject of further charges.
Similar provisions apply under Rule 132(2) to an appellant in
connection with his appeal.
33. These rules are supplemented by Standing Order M, which deals
in detail with communications between prisoners and others. Copies
of this Standing Order are available to prisoners and the public.
Standing Order Mal(a) sets out the purpose of examination of the
correspondence, namely to prevent its use to plan escapes or
disturbances or otherwise jeopardise the security of the establishment
and to satisfy other reasonable requirements of prison administration.
Under Standing Order Mal(d), when correspondence is examined or read
this is to be done as quickly as possible.
34. For the purposes of examination and censorship, Standing Order
Ma6 divides correspondence, both incoming and outgoing, into five
groups. Most correspondence with legal advisers falls into category
(e), that is, general correspondence. Under Standing Order Ma7 such
correspondence must not contain any of the material specified in that
Standing Order:
"7. General Correspondence
General correspondence (ie at (e) above) may not
contain the following:
(a) Escape plans, or material which if allowed
would jeopardise the security of a prison
establishment.
(b) Plans or material which would tend to
assist or encourage the commission of any
disciplinary offence or criminal offence
(including attempts to defeat the ends of
justice by suggesting the concoction or
suppression of evidence).
(c) Material which could jeopardise national
security.
(d) Descriptions of the making of any weapon,
explosive, poison or other destructive
devise.
(e) Obscure or coded messages which are not
readily intelligible or decipherable.
(f) Threats of violence or of damage to
property likely to induce fear in the
recipient.
(g) Blackmail or extortion.
(h) Indecent or obscene material.
(i) Information which would create a clear threat
or present danger of violence or physical harm
to any person.
(j) Complaints about prison treatment which the
inmate has not yet raised through the
prescribed procedures, ...
...
(k) Material which is intended for publication or
for use by radio or television (or which, if
sent, would be likely to be published or
broadcast)...
...
(l) Material constituting the conduct of business
activity...
...
(m) In the case of an inmate against whom a
deportation order is in force, material
constituting or arranging any financial
transaction, ...
...
(n) In the case of an inmate in respect of whom a
receiving order has been made or who is an
undischarged bankrupt, material constituting
or arranging any financial transaction...".
35. Following the friendly settlement in the case of McComb v.
the United Kingdom (No. 10621/83, Comm. Report, 15.5.86, to be
published in D.R. 50) the Secretary of State initiated new procedures
dealing with correspondence between a prisoner and legal adviser in
respect of legal proceedings. These new procedures came into force in
Scotland on 21 March 1988. They are set out in a new Standing Order
Ma8:
"Correspondence with a legal adviser about legal proceedings
to which an inmate is already a party or about a forthcoming
adjudication, may not be read or stopped unless the Governor
has reason to suppose it contains other material. Such a
letter may be examined for illicit enclosures, but should
only be opened for that purpose in the presence of the
inmate by whom it is sent or to whom it is addressed.
Other correspondence with a legal adviser may be read and may
not contain anything specified in Standing Order Ma7(a)-(i)
and (k) to (n). Such correspondence may not be stopped on
the grounds that it contains material prohibited by Standing
Order Ma7(j) unless it is clear that the inmate is not
seeking legal advice but is writing for some other purpose."
c. Correspondence concerning proceedings under the European
Convention on Human Rights
36. In addition to general provisions relating to correspondence,
Standing Order M contains specific provisions relating to
correspondence with the European Commission or Court of Human Rights
or with a legal adviser in connection with a petition to the
Commission or pending proceedings before the Commission or the Court.
Under Standing Order Ma10 such correspondence may not contain material
prohibited under Standing Order Ma7(a) to (c) or (e).
37. Further general provisions relating to the Convention are to
be found in Standing Order Mf. In particular, Standing Order Mf7
expressly provides that correspondence between an inmate and his legal
adviser about a petition to the Commission or proceedings resulting
therefrom should not be read unless the Governor has reason to suppose
that the correspondence contains other matters.
38. The Government state that in practice, as regards
correspondence between prisoners and the Commission, outgoing letters
if sealed will normally go unopened. Incoming letters from the
Commission are opened; the contents are examined to confirm that they
are what they purport to be but they are not read; they are thereafter
issued promptly to the prisoner.
III. OPINION OF THE COMMISSION
A. Points at issue
39. The principal issues to be determined are
- whether there has been a violation of Article 8 (Art. 8) of
the Convention as a result of the opening of the applicant's
correspondence with his solicitor concerning contemplated and pending
proceedings;
- whether there has been a violation of Article 8 (Art. 8) of the
Convention as a result of the opening of general correspondence with
his solicitor;
- whether there has been a violation of Article 8 (Art. 8) of the
Convention as a result of the opening of the applicant's
correspondence with the European Commission of Human Rights;
- whether the opening of the applicant's correspondence with the
European Commission of Human Rights has hindered the applicant in the
effective exercise of the right of individual petition contrary to
Article 25 para. 1 (Art. 25-1) of the Convention.
B. Opening of correspondence from the applicant's solicitor
40. The relevant part of Article 8 (Art. 8) of the Convention provides:
1. Everyone has the right to respect for ....his
correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
41. In its opinion in the case of SILVER and Others v. the United
Kingdom (No. 5947/72 etc., Comm. Rep. 11.10.80) the Commission
stated as follows (paras. 269 - 271):
"... a prisoner has the same right as a person at liberty to
respect for his correspondence, the ordinary and reasonable
requirements of imprisonment being of relevance in assessing
the justification for any interference with that right under
the exceptions permitted by Article 8 para. 2 (Art. 8-2)...
The Commission considers, therefore, that the right under
Article 8 para. 1 (Art. 8-1) to respect for correspondence
envisages a free flow of such communications, subject only
to the limitations prescribed by Article 8 para. 2 (Art. 8-2).
The Commission concludes that the censorship of prisoners'
correspondence by prison authorities, in principle,
constitutes an interference with the right of prisoners to
respect for their correspondence under Article 8 para. 1
(Art. 8-1)."
42. As regards Article 8 para. 2 (Art. 8-2), the Commission
recalled in that case that the interference had to be in accordance
with the law, which entailed three requirements - that the
interference in question must have some basis in domestic law and that
the law must be adequately accessible and foreseeable (Eur. Court
H.R., Sunday Times judgment of 26 April 1979, Series A No. 30, p. 30,
paras. 47-49). In respect of the condition "necessary in a democratic
society" the Commission recalled that restrictions imposed on a
prisoner's right to respect for correspondence had to be necessary and
proportionate to meet a legitimate governmental aim. Thus a balance
had to be struck between the need to rehabilitate a prisoner and the
interest of public order and security (Silver and Others Rep., loc.
cit., paras. 286-290).
43. The opinion of the Commission was not substantially contested
by the respondent Government before the European Court of Human
Rights, which confirmed most of the Commission's conclusions (Eur.
Court H.R., Silver and Others judgment of 25 March 1983, Series A,
No. 61, pp. 32 - 41, paras. 83 - 109). The Court also applied in its
judgment the general principles underlying the phrase "necessary in a
democratic society", including inter alia, the principle that to be
compatible with the Convention the interference must correspond to a
"pressing social need" and be "proportionate to the legitimate aim
pursued" (loc.cit., p. 37-38, para. 97).
44. The case of SILVER concerned almost exclusively complaints of
the stopping of letters. As regards the opening of letters, without
stopping, the case-law of the Commission and Court establishes that the
supervision of prisoners' correspondence, while an interference with
the right to respect for correspondence, is in general justified under
the provisions of Article 8 para. 2 (Art. 8-2) for the prevention of
disorder and crime (Silver and Others Rep., loc. cit., paras. 423 -
426). In addition, the delay in the posting of a letter while the
authorities contacted the applicant's representative was found in the
case of McCALLUM v. the United Kingdom (No. 9511/81, Comm. Rep.
4.5.89) to be an interference justified under Article 8 para. 2
(Art. 8-2) as being for the protection of the rights and freedoms of
others.
45. The Commission has also considered the problem of the
screening of correspondence from a solicitor to an applicant
concerning criminal proceedings against the applicant. The Commission
declared the case admissible under Article 6 (Art. 6) and 8 (Art. 8) of
the Convention (McCOMB v. the United Kingdom, No. 10621/83, Dec. 11.3.85
to be published in D.R. 50). The case was settled on the basis set
out above (para. 35).
46. In the present case, the applicant has complained of the
opening and screening by the prison authorities of his correspondence
with his solicitor. It appears that from the beginning of his
sentence in 1984 to the present time the applicant has been advised by
his solicitor in relation to a number of matters including
contemplated and pending legal proceedings and other matters.
47. The Commission notes that the applicant and his solicitor made
several complaints to the prison authorities concerning the practice of
opening the applicant's letters with his solicitor. The prison
authorities however maintained that the correspondence remained
subject to the rules in operation, which permitted the opening of such
letters. In these circumstances the Commission finds that the
applicant, a prisoner serving a life sentence, may claim to be a
victim of an interference with his right to respect for his
correspondence protected by Article 8 para. 1 (Art. 8-1) of the
Convention without specifying which letters in particular were opened
by the prison authorities.
48. The Commission recalls that following the friendly settlement
in the case of McCOMB v. the United Kingdom (loc. cit.) a new
standing order Ma8 came into force on 21 March 1988, changing the
practice in respect of correspondence concerning pending proceedings.
The applicant's complaints in the present case relate only to the time
before the change.
a. Opening of correspondence with the solicitor concerning
contemplated and pending proceedings
49. The Commission finds that the opening of the applicant's
correspondence with his solicitor concerning contemplated and pending
proceedings constituted an interference with the applicant's right to
respect for his correspondence within the meaning of Article 8 para. 1
(Art. 8-1) of the Convention.
50. The Commission must therefore determine whether this inter-
ference was in accordance with the law and necessary in a democratic
society for one or more of the purposes set out in para. 2 of Article
8 (Art. 8-2) of the Convention.
51. The Commission finds that the interference was based on the
Standing Orders issued by the Secretary of State in pursuance of his
statutory authority under Section 35 of the Prisons (Scotland) Act
1952. These Orders are published and available to prisoners and the
general public. The Commission also notes that it is not disputed by
the parties that the measure complained of was in conformity with
Scottish law. In these circumstances, the Commission finds that it was
"in accordance with the law" within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.
52. The Government submitted to the Commission that the
interference in question pursued the aim of "the prevention of
disorder and crime". The applicant has not alleged that the
restriction in issue was designed or applied for another purpose.
The Commission is satisfied that the measures pursued the aim of "the
prevention of disorder and crime".
53. As regards the necessity of the interference, the Commission
and the Court have in their case-law emphasised the importance of
protecting the confidentiality between a lawyer and his prisoner
client in the context of Article 6 para. 1 (Art. 6-1) of the
Convention and the principle of effective access to court.
54. The Commission stated as follows in its Report in the Campbell
and Fell case:
"It is a generally acknowledged principle in the Contracting
States that conversations between a lawyer and his client
concerning contemplated or pending litigation are protected by
privilege, enabling the client to make a full disclosure of
his affairs to his lawyer without fear of prejudicing any
cause of action he may have. In the Commission's view, where
access to court is permitted only under conditions in which
the potential litigant is denied the benefit of privilege
normally afforded under domestic law, this amounts in
principle to an interference with the right of access to court
protected by Article 6 para. 1 (Art. 6-1)" (Campbell and Fell
v. the United Kingdom, Comm. Report 12.5.82, para. 158,
Eur. Court H.R., Campbell and Fell judgment of 28 June 1984,
Series A No. 80, p. 71 and p. 49, paras 111-113).
55. The Commission takes the view that these considerations are of
equal significance in the context of Article 8 (Art. 8) of the Convention.
While the Commission does not exclude the opening of correspondence
concerning contemplated and pending proceedings where there exists a
reasonable suspicion that the privileged channel of communication is
being abused, the Commission notes that no allegations to this effect
have been made in the present case. Furthermore, the solicitor enjoys
a special professional status (see para. 61). In these circumstances,
the Commission finds that the opening of this category of
correspondence was not necessary in a democratic society in the
present case for the prevention of disorder or crime within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
Conclusion
56. The Commission concludes, by 11 votes to 1, that there has
been a violation of Article 8 (Art. 8) of the Convention in respect of the
opening of the applicant's correspondence with his solicitor concerning
contemplated and pending proceedings.
b. Opening of general correspondence with the solicitor
57. The Commission finds that the opening of the applicant's
general correspondence with his solicitor constitutes an interference
with his right to respect for his correspondence.
58. The Commission also finds, as above (see paras. 51 - 52), that
this practice was in accordance with the law and pursued the aim of
the prevention of disorder and crime.
59. As regards the necessity of the interference, the Government
have submitted that the opening of categories of solicitors'
correspondence with a prisoner other than those concerning pending
proceedings is necessary since there is always a risk that prisoners,
under cover of a letter from or to solicitors, would pass and receive
unauthorised material, which could pose a threat to good order and
discipline in the prison and facilitate attempts at escape, drug
dealing or other criminal activities. They point out the abuses which
have already been found in respect of the McCOMB procedures - witness
statements being used to identify and intimidate witnesses and in sex
offence cases being circulated within prison as stimulatory material.
The Government contend that whatever the status and duties of a
solicitor, it cannot be assumed that every solicitor is competent and
honest or immune from the type of pressure that may be brought to
bear.
60. The applicant has contended that it is equally important that
correspondence, which may lead to legal proceedings, should not be
read by prison authorities: such material is equally as confidential in
its nature if not more so, since correspondence about current
proceedings is more likely to refer to matters that have become public
knowledge. The applicant also contends that a solicitor by virtue of
his profession enjoys important privileges and responsibilities, which
necessitate his acting with the strictest integrity. While abuses may
occur, these are dealt with by the Law Society and the Courts and
cannot be used as the basis for refusing a solicitor the necessary
facilities for properly representing his client.
61. The Commission recalls that Convention case-law has
established that the mere screening of correspondence is a measure in
general justified as necessary for the prevention of disorder or
crime. An exception has been found above in relation to
correspondence from a solicitor relating to contemplated and pending
litigation. The Commission recalls that the issue of the right to
respect for this correspondence under Article 8 (Art. 8) of the
Convention was found to be linked to the principle of effective access
to court under Article 6 para. 1 (Art. 6-1). While this special
factor may be absent with regard to other correspondence with a
solicitor, the Commission recalls that under Article 8 para. 2 (Art.
8-2) the phrase "necessary in a democratic society" means that to be
compatible with the Convention, an interference must correspond to a
"pressing social need". The Commission has had regard to the
professional status of solicitors, who are regarded as officers of the
court and subject to disciplinary sanction from, in Scotland, the Law
Society of Scotland and to the confidentiality attaching to
correspondence with a solicitor, even of a general nature. The
Commission is of the opinion therefore that the opening of general
correspondence between solicitors and their clients is an interference
which does not correspond to a "pressing social need". While the
opening of particular letters is not excluded in exceptional
circumstances, where for example there is a reasonable suspicion of
abuse, the Government have not submitted any special reasons
justifying the opening of letters between the applicant and his
solicitor in particular. The Commission concludes therefore that the
opening of the applicant's general correspondence with his solicitor
was not justified as being necessary in a democratic society for the
prevention of crime and disorder within the meaning of Article 8 para.
2 (Art. 8-2) of the Convention.
Conclusion
62. The Commission concludes, by 8 to 4, that there has
been a violation of Article 8 (Art. 8) of the Convention in respect of the
opening of the applicant's general correspondence with his solicitor.
C. Opening of correspondence with the Commission
63. The applicant has introduced two applications (No. 12323/86
and the present application) before the Commission and complains that
his correspondence with the Commission is opened by the prison
authorities. The Commission has examined these complaints under
Article 8 (Art. 8) of the Convention and Article 25 (Art. 25) of
the Convention.
a. Article 8 (Art. 8) of the Convention
64. The Commission refers to the general principles and case-law
referred to above (paras. 40-45) which establish that the opening of
correspondence to a prisoner is in general justified under Article 8
para. 2 (Art. 8-2) of the Convention.
65. The Government have submitted that the opening of the
applicant's correspondence with the Commission cannot constitute
a violation of the applicant's rights under Article 8 (Art. 8) of the
Convention. They submit that there are sound reasons why the
authorities should be entitled to open letters purposing to come from
the Commission in order to check that the contents are indeed a
communication from the Commission. They refer to the inevitable risk
of abuse where there is a channel of communication known to be free of
surveillance. The Government have also submitted that this complaint
falls to be dealt with under Article 25 para. 1 (Art. 25-1) in fine which
should be regarded as being the lex specialis in this matter.
66. The applicant has argued that Article 8 (Art. 8) of the
Convention is applicable to his complaints, which concern an
interference with his right to respect for his correspondence, which
is expressly guaranteed under that provision. He further disputes
that the opening of such correspondence can be considered justified
under Article 8 para. 2 (Art. 8-2) of the Convention.
67. The Commission takes the view that while Article 25 para. 1
(Art. 25-1) in fine is the lex specialis in relation to complaints which
impinge on the efficacy of communication between an applicant and
the Commission, it is not thereby barred from examining such
complaints also under Article 8 (Art. 8) of the Convention. The two
provisions address different issues and involve the application of
different principles. Article 8 (Art. 8) of the Convention is therefore
applicable to the present case.
68. The Commission finds that the opening of this correspondence
constitutes an interference with the applicant's right to respect for
his correspondence. It also finds that the interference is "in
accordance with law", since it is provided for in the Standing Orders,
which are published and available. The interference also pursues the
aim of "the prevention of disorder and crime".
69. As regards the "necessity" of the interference, the Commission
recalls that Convention case-law has established that the opening of
correspondence is in general justified as necessary for the above
purpose. An exception has been made above in respect of
correspondence with a solicitor having regard to the factors of
effective access to court and the status and responsibilities enjoyed
by solicitors in the Scottish legal system. As regards interference
with correspondence with the Commission, the Commission recalls
that many complaints which are submitted to it by prisoners concern
their treatment and conditions of detention in prison. The Commission
considers it essential that the channel of communication enjoyed by
prisoners with the Convention organs is free from all unnecessary
constraint.
70. The Government in their submissions have referred to the
possibility of persons forging Commission stationery and sending
letters from Strasbourg. The Commission finds this risk of abuse to
be negligible, no instances having been known to have occurred. The
Commission also notes that several of the Contracting States have
enacted legislation which recognises the inviolability of
correspondence between prisoners and the Convention organs.
71. The Commission recalls that Article 3 (Art. 3) of the European
Agreement relating to persons participating in proceedings before the
European Commission and Court of Human Rights, in particular Article 3
para. 2 (a) (Art. 3-2-a), appears to accept that the opening of
correspondence may take place. The Commission considers, however,
that the provisions of this Agreement can have no bearing on the
content of the substantive rights guaranteed under the Convention.
The Commission would in any case consider that this provision serves
to prohibit stopping or delay where exceptional circumstances justify
the opening of particular letters, rather than to confer a general
power of screening in respect of all letters.
Consequently, the Commission considers that there is no
"pressing social need" for this interference with correspondence with
the Commission and notes again that no special circumstances
justifying suspicion of abuse have been put forward by the Government
in the present case. The Commission finds therefore that the opening
of these letters is not justified as necessary in a democratic society
for the purpose of the prevention of disorder and crime.
Conclusion
72. The Commission concludes, by 11 votes to 1, that there has
been a violation of Article 8 (Art. 8) of the Convention as a result
of the opening of the applicant's correspondence with the Commission.
b. Article 25 (Art. 25) of the Convention
73. Article 25 para. 1 (Art. 25-1) of the Convention provides.
"The Commission may receive petitions addressed to the
Secretary-General of the Council of Europe from any person,
non-governmental organisation or group of individuals claiming
to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in this Convention, provided
that the High Contracting Party against which the complaint
has been lodged has declared that it recognises the competence
of the Commission to receive such petitions. Those of the
High Contracting Parties who have made such a declaration
undertake not to hinder in any way the effective exercise of
this right."
74. The Commission has examined whether, in the present case, the
opening by the prison authorities of the applicant's correspondence
with the Commission in the present case was compatible with Article
25 para. 1 (Art. 25-1) of the Convention. It notes that the opening
of this correspondence has been found to be in violation of Article 8
(Art. 8) of the Convention (see para. 72). Article 25 para. 1.
(Art. 25-1) in fine of the Convention relates, however, to the
question of whether an applicant has been hindered in the exercise of
his right of individual petition.
75. The Commission notes that the applicant has complained
only of the opening his letters with the Commission: he has not
complained that the letters were delayed or tampered with in any way.
The Commission finds no evidence in the present case that the applicant
suffered any prejudice in regard to the presentation of his
application to the Commission or that he was in any way frustrated in
the exercise of his right of application. The Commission therefore
finds no indication that he has been hindered in the exercise of his
right of individual petition contrary to Article 25 para. 1
(Art. 25-1) in fine.
Conclusion
76. The Commission concludes, by 10 votes to 2, that the applicant
has not been hindered in the effective exercise of the right of
individual petition under Article 25 para. 1 (Art. 25-1) in fine of the
Convention.
D. Recapitulation
77.
- The Commission concludes, by 11 votes to 1, that there has
been a violation of Article 8 (Art. 8) of the Convention in respect of the
opening of the applicant's correspondence with his solicitor
concerning contemplated and pending proceedings (para. 56).
- The Commission concludes, by 8 votes to 4, that there has
been a violation of Article 8 (Art. 8) of the Convention in respect of the
opening of the applicant's general correspondence with his solicitor
(para. 62).
- The Commission concludes, by 11 votes to 1, that there has
been a violation of Article 8 (Art. 8) of the Convention as a result of the
opening of the applicant's correspondence with the Commission (para. 72).
- The Commission concludes, by 10 votes to 2, that the
applicant has not been hindered in the effective exercise of the right
of individual petition under Article 25 para. 1 (Art. 25-1) in fine of the
Convention (para. 76).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Partially dissenting opinion of Mr. H.G. Schermers
The problem underlying this case is comparable to the one in
the case of S. against Switzerland (Nos. 12629/87 and 13965/88,
Comm. Rep. 12 July 1990) in which I dissented. Again a proper balance
must be found between the interests of prisoners and their lawyers on
the one hand and those of the prison administration (and through them
of society in general) on the other. Regard must be had to the fact
that the administration of a prison is not an easy task and requires
great care. The authorities are responsible for keeping good order
and they must prevent inter alia plans for escape and the
smuggling of drugs. This necessitates some supervision also over the
correspondence of prisoners.
In the present case the Commission finds three violations in
respect of the opening of the applicant's correspondence. In my
opinion, this goes too far. Opening as such (for the sake of verifying
for example, whether there are no drugs hidden in a letter or whether
the sender mentioned on the envelope is the true provenance of the
letter) cannot be contrary to the Convention. People who want to
deceive the prison authorities would not find it difficult to copy or
falsify an envelope of a lawyer or of the European Commission of Human
Rights.
The policy of the (Deputy) Governor, explained in paras. 20
and 21 of the Report seems acceptable.
A distinction should also be drawn between incoming and
outgoing mail. The opening of incoming mail in the presence of the
prisoner and solely for the purpose of verification (that is without
the letter being read) should always be permitted. After verification
that a letter is from the prisoner's lawyer the authorities should not
be allowed to read the letter. I see no reason why the authorities
should not be allowed to read other letters. In principle, prisoners'
letters do not contain confidential information. Of course, the
censor should be bound by an obligation of confidentiality,
prohibiting him from passing on, or commenting on, the private affairs
of the inmate.
With respect to letters from the European Commission of Human
Rights, it should be taken into account that it is the Commission's
policy to inform both parties of any developments in the proceedings.
Copies of letters to applicants are normally sent to the Government and
vice versa. Letters to a prisoner would rarely, if ever, contain
confidential information.
As regards outgoing mail the risk of abuse is less and the
need for confidentiality is greater. When a letter is addressed to
the prisoner's lawyer or to the European Commission of Human Rights it
can hardly be expected that it will go elsewhere. The need for
verification is negligible. At the same time, there is a greater risk
for the prisoner that prison officers will take some sort of revenge
if they learn of the prisoner's complaints against them. Therefore,
the rule should be - in conformity with the policy of the Governor of
H.M. Prison Peterhead (para. 20) - that prisoner's letters to the
applicant's solicitor or to the European Commission of Human Rights
should be sent unopened. But even in these cases opening in the
presence of the prisoner without reading would not be contrary to any
fundamental human right of the prisoner.
I share the opinion of the majority that Article 3 para. 2 (a)
of the European Agreement Relating to Persons Participating in
Proceedings of the European Commission and Court of Human Rights does
not affect the rights and obligations contained in Article 8 of the
Convention. Nonetheless, that provision indicates that in 1969 the
Contracting States were of the opinion that the opening of prisoner's
letters was permissible. It thus offers some clarification of the
intention of the drafters of the Convention. As, however, the
Convention is a living instrument the interpretation of which may
change over time, that intention might be relevant but certainly not
decisive.
Partially dissenting opinion of Sir Basil Hall joined by
Mrs. J. Liddy
We find ourselves unable to agree with the view of the
Commission that the opening of general correspondence between a
prisoner and his solicitor cannot, in the absence of special
circumstances, be justified under Article 8 para. 2 of the Convention
as being necessary in a democratic society for the prevention of crime
and disorder.
Solicitors in the United Kingdom carry out a wide range of
functions on behalf of their clients, functions in which they have no
monopoly. Such correspondence may be of a highly confidential nature.
It can, however, cover a vast range of possible subjects from
traditional functions such as the drafting of wills and conveyances to
advice on financial and property matters, and even to the management
of land and other property. We recall that in the SILVER case (Eur.
Court H.R., loc. cit., p. 39, para. 101) the stopping of a letter to a
solicitor was found to be justified, since it possibly related to the
disposal of the proceeds of a crime.
Although subject to the supervision of their professional
governing bodies, not all solicitors apply the same standards when
requested to act on behalf of their clients, but more importantly use
may be made of them to convey information without their being aware of
its significance.
We are therefore of the opinion, that the opening of general
correspondence from a solicitor is justified as being necessary in a
democratic society for the prevention of crime and disorder within the
meaning of Article 8 para. 2 of the Convention, and that the opening
of the applicant's correspondence for his solicitor was justified on
that basis in the present case.
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
14.01.86 Introduction of the application
05.02.88 Registration of the application
Examination of admissibility
13.07.88 Commission's deliberations and
decision to invite the Government
to submit observations in writing
01.12.88 Government's observations
07.03.89 Applicant's reply
12.05.89 Further observations of the applicant
23.05.89 Further observations of the Government
07.09.89 Commission's further deliberations
and decision to invite the parties
to a hearing
08.11.89 Hearing on admissibility and merits
The parties were represented as
follows:
Government:
Mr. Michael Wood
Mr. MacKay, QC
Mrs. MacDonald (Scottish Office)
Mr. Reeves (Scottish Home and Health
Department)
Applicant:
Mr. John Carroll
08.11.89 Commission's deliberations and
decision to declare the application
partly admissible and partly
inadmissible, and to examine further
the issue under Article 25 para. 1 of
the Convention
Examination of the merits
08.11.89 Deliberations on the merits
05.02.90 Applicant's observations on the merits
23.02.90 Government's observations on the
merits
12.05.90 Consideration of state of proceedings
05.07.90 Commission's deliberations on the
merits
09.07.90 Commission's deliberations on the
merits and final votes
12.07.90 Commission's adoption of the Report
Full & Egal Universal Law Academy