CASE OF BOYLE AND RICE v. THE UNITED KINGDOM

 

 

 

COURT (PLENARY)

 

 

 

 

 

 

CASE OF BOYLE AND RICE v. THE UNITED KINGDOM

 

(Application no. 9659/82; 9658/82)

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG 

 

27 April 1988

In the case of Boyle and Rice[*],

The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:

Mr. R. Ryssdal, President,

Mr. J. Cremona,

Mr. Thór Vilhjálmsson,

Mrs. D. Bindschedler-Robert,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

Sir Vincent Evans,

Mr. R. Macdonald,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. A. Spielmann,

Mr. J. De Meyer,

Mr. N. Valticos,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,

Having deliberated in private on 29 and 30 October and 24 November 1987 and 24 March 1988,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.  The case was brought before the Court on 18 July 1986 by the European Commission of Human Rights ("the Commission"), within the period of three months laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The case originated in two applications (nos. 9659/82 and 9658/82) lodged with the Commission under Article 25 (art. 25) against the United Kingdom of Great Britain and Northern Ireland, the first in 1981 by James and Sarah Boyle and the second in 1982 by Brian and John Rice. All four applicants are British citizens.

Brian and John Rice, who at the outset were designated by the initials X and Y, subsequently consented to the disclosure of their identities.

2.  The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request and the application was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 13 (art. 8, art. 13) of the Convention.

3.  In response to the inquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, both sets of applicants stated that they wished to participate in the proceedings pending before the Court and designated the lawyers who would represent them (Rule 30).

4.  The Chamber of seven judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 26 September 1986, the President of the Court drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. F. Gölcüklü, Mr. J. Pinheiro Farinha, Mr. A.M. Donner, Mr. J. De Meyer and Mr. N. Valticos (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr. J. Gersing, substitute judge, replaced Mr. Donner, who was prevented from taking part in the consideration of the case (Rules 22 § 1 and 24 § 1).

5.  Mr. Ryssdal assumed the office of President of the Chamber (Rule 21 § 5). He ascertained, through the Registrar, the views of the Agent of the Government of the United Kingdom ("the Government"), the Delegate of the Commission and the lawyers for the applicants regarding the need for a written procedure (Rule 37 § 1). Thereafter, in accordance with the Orders and directions of the President of the Chamber, the following documents were lodged at the registry:

- on 15 December 1986, the memorial of the applicants;

- on 30 January 1987, the memorial of the Government;

- on 4 May 1987, an account of costs and expenses rendered by the applicants’ solicitors;

- on 25 June 1987, the further comments of the Government on the application of Article 50 (art. 50) of the Convention.

On 3 March 1987, the Delegate of the Commission had notified the Registrar that he did not wish to present any comments in writing.

6.  On 6 March 1987, after consulting, through the Registrar, the Agent of the Government, the Delegate of the Commission and the lawyers for the applicants, the President directed that the oral proceedings should open on 18 May 1987 (Rule 38). Shortly thereafter, Mr. Ryssdal, being prevented from taking further part in the consideration of the case, was replaced as President of the Chamber by Mr. Cremona, the Vice-President of the Court (Rule 21 § 5).

7.  The hearing was held in public at the Human Rights Building, Strasbourg, on the appointed day. Immediately prior to its opening, the Court had held a preparatory meeting.

There appeared before the Court:

- for the Government

Mr. M. Wood, Legal Counsellor,

Foreign and Commonwealth Office, Agent,

Mr. M. Baker, Barrister-at-Law,

Mr. A. Grotrian, Advocate, Counsel,

Mrs. M. Macdonald, Scottish Office,

Mr. D. Dalgetty, Scottish Office, Advisers;

- for the Commission

Sir Basil Hall, Delegate;

- for the applicants

Mr. A. Lester, Q.C.,

Mr. D. Pannick, Barrister-at-Law, Counsel.

The Court heard addresses by Mr. Baker for the Government, by Sir Basil Hall for the Commission and by Mr. Lester for the applicants, as well as their replies to its questions.

The same day, the Government lodged at the registry various documents the production of which the Registrar had previously, on 7 May 1987, requested on the instructions of the President of the Chamber.

8.  Following deliberations held on 20 May 1987, the Chamber, by unanimous decision, relinquished jurisdiction in favour of the plenary Court (Rule 50).

Having taken note of the agreement of the Agent of the Government and the concurring opinion of the Delegate of the Commission and of the applicants, the Court decided on 23 September 1987, that the consideration of the case should continue without resumption of the oral proceedings (Rule 26).

AS TO THE FACTS

I.  PARTICULAR CIRCUMSTANCES OF THE CASE

A. James and Sarah Boyle

9.  The applicants, James and Sarah Boyle, are British citizens born in 1944 and 1950 respectively. In 1967, the first applicant was sentenced in Scotland to life imprisonment for murder. He received a number of subsequent prison sentences in 1968 and 1973 for prison breaking, attempted murder of a prison officer and assault on prison staff. The second applicant is the first applicant’s wife and a doctor by profession.

10. In March 1973, Mr. Boyle was removed from Peterhead Prison to a Special Unit in Barlinnie Prison. This Unit had been set up on an experimental basis to treat selected long-term prisoners and prisoners with violent propensities (see paragraph 32 below). The Unit had a maximum of eight prisoners and was characterised by a more liberal regime. Mr. Boyle played a prominent role in facilitating the success of the Special Unit. In particular, he discovered that he had special abilities in working with people and in sculpture, writing and other areas of artistic activity.

While in the Special Unit, Mr. Boyle was allowed, amongst other things, to write and receive uncensored mail, to have daily access to visitors and to use a telephone. He was thereby able to meet his wife, talk to her on the telephone and correspond with her without being subject to the normal restrictions. He also had the opportunity to go out of the prison without escort.

11. In September 1980, Mr. Boyle was advised by the Parole Board that he was to be released on licence in November 1982 and that he was to be transferred to Saughton Prison, Edinburgh, to undergo a pre-release programme. He was informed that he would serve his time there on the same terms and conditions as other prisoners. It was considered that, although the regime there was on traditional lines, Saughton Prison would be more beneficial to Mr. Boyle during the period leading to his eventual release than other alternatives, for example Penninghame Open Prison (see paragraph 31 below). The factors governing the choice included the desirability of his occupying a single cell rather than being in a dormitory; the availability of suitable day-time work for him and of facilities for continuing his studies and his artistic work; and access to suitable educational and vocational opportunities for his pre-release training. Mr. Boyle himself had in fact stated in written submissions in December 1979 that, if he could not remain at Barlinnie for his pre-release programme, he would prefer training from Edinburgh rather than Penninghame.

In November 1981, he was transferred to a Training for Freedom Hostel within the prison (see paragraph 33 below). He was released on 1 November 1982.

As from October 1980 until his release, he was in the lowest security category (Category D).

12. The applicants’ complaints to the Commission in so far as relevant to the present proceedings all related to the period between September 1980 and November 1981 when Mr. Boyle was subject to the ordinary prison regime at Saughton Prison. The facts surrounding those grievances are briefly set out in the following paragraphs.

13. During the relevant period the normal rules regarding the sending and payment of correspondence were applied to Mr. Boyle (see paragraphs 22 and 23 below). The postage of only one three-page letter per week was paid for out of public funds. He was able to pay for other letters out of his prison earnings of £1.60 per week but not out of his general financial resources. In a letter of 31 July 1981 from his solicitors to the Secretary of State for Scotland, a complaint was made that because he found it necessary to spend 80 pence per week out of his earnings to supplement his (mainly) vegetarian diet by buying oatmeal cakes as the prison service provided only white bread, the number of letters he was able to send was restricted. A full vegetarian diet was available at Saughton Prison and no complaint was made by Mr. Boyle to the Governor or to the Secretary of State as to its adequacy.

14. Mr. Boyle’s incoming and outgoing mail was controlled by the prison authorities in accordance with the normal practice followed at the prison (see paragraph 24 below). The applicants also asserted before the Commission that on occasions the prison censorship officer read out aloud in front of other inmates letters from Mrs. Boyle, laughing or making comments about their contents. However, Mr. Boyle did not make any complaint to the Governor of the Prison or the Secretary of State regarding the manner in which his mail was read, in particular about its being read aloud, although the fact of his mail being screened was the subject of complaint in his solicitors’ letter of 31 July 1981.

15. In July 1981, a letter to a friend of his, Mr. Peter McDougall, was stopped by the Prison Governor on the ground that Mr. McDougall was a "media personality". Mr. Boyle petitioned the Secretary of State regarding this matter, but his petition was rejected on the basis that there was a general prohibition of the passing on by a prisoner of material intended for publication or for use on wireless or television (see paragraph 25 below). The Government have subsequently acknowledged that in fact this rule was applied in error, since, although the letter in question was addressed to a person connected with the public media, it was a personal one which Mr. Boyle should have been allowed to send.

16. Mr. Boyle was entitled to receive visits in accordance with the normal rules applied in Saughton Prison (see paragraph 26 below). Consequently, as pointed out in his solicitors’ letter of 31 July 1981, he was permitted only one hour’s visiting time a month under close supervision in a crowded visiting hall. He used this time to meet his wife, with the result that he was not able to see the other members of his family.

He was able to benefit from the special escorted leave scheme and visited his home on two occasions, albeit under the constant supervision of an officer in accordance with the scheme (see paragraph 28 below).

As from November 1980, he was given a special licence to do unescorted community work outside the prison, initially for two days and subsequently for five days a week.

17. The solicitors for Mr. and Mrs. Boyle also raised with the Secretary of State a general objection that Mr. Boyle’s treatment at Saughton Prison was markedly less favourable than his treatment at Barlinnie Special Unit and also in comparison with other Category D prisoners elsewhere under the penal system.

By reply dated 28 August 1981, the Secretary of State rejected this and the other complaints made in the solicitors’ letter of 31 July 1981.

Mr. Boyle also complained through his Member of Parliament to the Parliamentary Commissioner for Administration (the Ombudsman - see paragraph 39 below) about various aspects of his treatment at Saughton Prison. In a letter of 17 September 1981, the Ombudsman stated that he could not uphold Mr. Boyle’s complaints. He stated, inter alia:

"From the details that Mr. Boyle has given, his correspondence, special escorted leave, and visits appear to have been dealt with correctly in accordance with current rules, however dissatisfied he may be with those rules. I think it is fair to say that much of Mr. Boyle’s complaint reflects his disagreement with those rules and with their application to him at this stage of his sentence. The rules are of course a matter for Parliament and in the absence of evidence of maladministration I am precluded by the Parliamentary Commissioner Act from questioning the Department’s discretion in applying them."

B. Brian and John Rice

18. The applicants, Brian and John Rice, are British citizens born in 1947 and 1920 respectively.

Brian Rice was sentenced to life imprisonment for murder in 1967. He served his sentence in Peterhead and Perth Prisons until August 1979. From August 1979 onwards, he was detained as a Category D prisoner (that is, the lowest security category) at Saughton Prison. He was moved to the Training for Freedom Hostel within the prison (see paragraph 33 below) on 11 September 1981 and was released on licence on 1 June 1982. He had requested to serve the latter part of his sentence in Edinburgh rather than, for example, in Penninghame Open Prison (see paragraph 31 below) because he wanted, prior to his release, to have the benefit of further education courses which were not available from Penninghame.

John Rice is the first-named applicant’s father and lives at Dundee, some sixty miles from Edinburgh. At the relevant time he was seriously ill - having been in bad health for some years - and unable to walk or travel.

19. During his period in Saughton Prison, Brian Rice enjoyed the normal entitlement to visits applicable at the prison.

He petitioned the Secretary of State for Scotland on 8 May 1981 requesting a home visit to his father. The petition indicated that his father had been "ill for a considerable period", but not that he was dangerously ill, which would have made him eligible for compassionate leave (see paragraph 27 below). His request was therefore refused on 27 May 1981. The decision recommended him to make the effort to get a member of staff to take him out of prison under the special escorted leave scheme (see paragraph 28 below). It appears, however, that he experienced difficulty in finding a prison officer to accompany him on special escorted leave. Although Brian Rice was not able to visit his father during the relevant period, he was permitted to attend, without an escort, a college to follow an educational course two days a week and also a centre where he was doing community work. He had previously been granted a home visit in August 1980 and prior to the commencement of the Training for Freedom programme he spent five days on home leave in September 1981.

In a letter dated 23 July 1981 in reply to a letter of 18 June from Mr. Rice’s Member of Parliament, the Under Secretary of State at the Scottish Office explained the reasons for the refusal of compassionate leave:

"... Each application is considered on its merits and on the basis of medical and social work reports. Mr. Rice’s application for a special visit was considered in the usual way but it was decided that it did not meet the required conditions. Mr. Rice was advised that if his father’s condition deteriorated he should make a further request. It is necessary, to prevent abuse of the arrangements, to maintain a strict and entirely consistent approach to applications for compassionate visits from all prisoners and the fact that a prisoner is being released for educational or other purposes does not affect consideration of the merits of his application or remove the need for the normal criteria to be met. ... Mr. Rice is expected to transfer to the formal Training for Freedom (TFF) in September. Prior to that he will have a five-day home leave and while on TFF he will have weekends which he may spend at home. I feel that it would be quite wrong, before that stage is reached, to make a special exception in Mr. Rice’s case and circumvent the rules in relation to either a compassionate visit or a special escorted leave."

20. On 28 July 1981, the solicitors acting for Brian Rice wrote to the Secretary of State complaining about

- the alleged stopping by the prison authorities of a number of letters addressed to themselves, his Member of Parliament, his former counsel and his family;

- his limited prison visiting entitlement, which, as regards maintenance of family contacts, was said to discriminate against him in comparison with other prisoners who were in Category D but detained in open conditions; and

- the refusal to grant compassionate leave.

The reply of 2 September 1981 sent on behalf of the Secretary of State rejected all the various complaints raised. In particular, it was pointed out that all his mail had been posted.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A. General legal framework

21. The prison system in Scotland is governed by the Prisons (Scotland) Act 1952 ("the 1952 Act"). Under sections 1 and 3 of the 1952 Act, general control and superintendance over prisons in Scotland are vested in the Secretary of State for Scotland.

Section 35(1) of the 1952 Act empowers the Secretary of State to "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". This power is exercisable by statutory instrument. A draft of any statutory instrument made under section 35 has to be laid before Parliament (section 40). Statutory instruments are categorised by domestic law as subordinate legislation (section 1 of the Statutory Instruments Act 1946). Subordinate legislation is recognised at common law to have the full force and effect of legislation made by the Sovereign in Parliament (see Halsbury’s Laws of England, 4th ed., vol. 44, para. 981). Statutory instruments such as the Prison Rules are made public.

In exercise of his powers under section 35 of the 1952 Act, the Secretary of State has made the Prison (Scotland) Rules 1952 (Statutory Instrument 1952/565) ("the Prison Rules"), which have been amended periodically.

In supplement of the Prison Rules, the Secretary of State, in the exercise of his general jurisdiction over prisons and of various powers conferred in the Prison Rules themselves, issues instructions to the Governors of prisons by way of administrative orders referred to as "Standing Orders". At the relevant time, the text of the Standing Orders themselves was not made public. However, an Abstract of Rules and Regulations for Convicted Prisoners ("the Abstract") containing information about the content of the Prison Rules and Standing Orders was made available to convicted prisoners.

B. Correspondence

22. Rule 74 of the Prison Rules provides, inter alia:

"(2) Every prisoner shall be allowed to write and to receive a letter on his admission, and shall thereafter be allowed to write and to receive letters and to receive visits at intervals laid down by the Secretary of State. The intervals so prescribed may be extended as a punishment for misconduct, but shall not be extended so as to preclude a prisoner from writing and receiving a letter, and receiving a visit, every eight weeks.

...

(4) Subject to the provisions of Rule 50(4) every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable."

At the relevant time, these provisions were supplemented by Standing Orders Ic.1 to 4.

1. Payment of postage

23. Thus, Standing Order Ic.2(3) specified:

"Prisoners will be granted the privilege of writing letters on the following scale:

(a) All convicted prisoners ... are allowed to write one letter each week to their relatives and friends, the postage of which will be paid out of public funds. ...

...

(d) Postage of additional letters may be met from earnings; the use of private cash from sources other than earnings should not be allowed for this purpose. Before an inmate is allowed to write extra letters he should submit for the Governor’s approval a list of persons with whom he intends to correspond. Additions to or deletions from the list will be at the Governor’s discretion.

..."

No limit was placed on the number of additional letters that might be sent. The content of the relevant provisions of the Standing Orders was made known to prisoners in paragraph 23 of the Abstract.

2. Screening of correspondence

24. Standing Order Ic.1(1)(a) dealt with the reading of correspondence under Prison Rule 74(4) (see paragraph 22 above):

"In the case of the great majority of letters, where neither the prisoner nor his offence is of notoriety, and the correspondent is a wife or near relative, it is not necessary that every letter should be read through. It will usually suffice to glance at the contents and see they are of usual domestic and personal nature. There will, however, always be certain prisoners whose correspondence requires to be thoroughly examined, and it will be for the Governor to settle who these are and to instruct the officer who deals with the letters accordingly."

Standing Order Ic.4(9) further provided (as regards incoming mail):

"In no circumstances should the contents of a letter to a prisoner or inmate be referred to in the hearing of another inmate."

3. Stopping of letters

25. Standing Order Ic.1(3) dealt with the exercise of the Governor’s discretion under Rule 74(4) to stop "objectionable" letters. It stated:

"All ordinary matter, including news of public events, should be passed. Comment by a prisoner on his own conviction and sentence is not objectionable if expressed in proper terms. Objectionable matter falls within narrow limits, viz.

...

(c) Matter intended for insertion in the Press, for publication or for use on wireless or television (with the exception of the magazine ‘Linkup’).

..."

Since the relevant time, new Standing Orders on prisoners’ correspondence have been introduced in Scotland in light of the European Court of Human Rights’ judgment of 25 March 1983 in the case of Silver and Others (Series A no. 61). The restrictions on correspondence formerly applicable have been considerably relaxed, including in particular the prohibition on letters intended for publication. These new provisions relating to correspondence (Standing Order M, which also concerns visits) are available to prisoners.

C. Visits in prison

26. Under the terms of Rule 74(2) of the Prison Rules (see paragraph 22 above), every prisoner is allowed to receive visits at intervals laid down by the Secretary of State. At the relevant time, Standing Order Ic.7 provided, inter alia:

"(1) Every prisoner shall be allowed to receive a visit at least once in every eight weeks and no prisoner shall be deprived of this privilege by a disciplinary award.

(2) Prisoners will be granted the privilege of receiving visits as follows: -

...

(b) In the first period of two months following admission under sentence every prisoner will be eligible to receive two visits from relatives or friends. In each subsequent period of two months he will be eligible to receive three visits."

Paragraph 23 of the Abstract informed prisoners of these provisions regarding the frequency of visits.

The normal duration of a visit was specified under the Standing Orders as being thirty minutes, or twenty minutes during the first ten months of imprisonment (Standing Order Ic.8(3)).

Governors were given discretion to vary the duration and frequency of visits laid down in the Standing Orders provided the total visiting hours were not less than specified in the Standing Orders. The arrangement at Saughton Prison differed from that laid down in the Standing Orders in that one visit of one hour’s duration per month was permitted in place of the allowance in the Standing Orders of three visits of half an hour every two months.

In addition to the ordinary entitlement, the Visiting Committee was empowered to allow an extra or longer visit in exceptional circumstances (Rule 199 of the Prison Rules - see paragraph 37 below).

D. Home visits and temporary release

27. By virtue of Rule 28(1) of the Prison Rules, "the Secretary of State may authorise the temporary release of prisoners undergoing imprisonment ... for a stated length of time and under conditions and for reasons approved by him".

Standing Order Jc.3 sets out the circumstances in which permission may be granted for temporary release on compassionate grounds. Compassionate leave will only be given to visit a near relative who is dangerously ill or to attend the funeral of a near relative. An escort is not normally required for such leave where the prisoner is in Security Category D but is required for other higher security categories.

28. A special escorted leave scheme has been operated at Saughton Prison for many years. It is not dealt with in the Standing Orders but a Notice, dated 20 November 1978, was issued by the Governor of the Prison explaining the purposes, qualifying conditions and means of operation of the scheme.

The objectives of the scheme are to relieve tension associated with long sentences, to help maintain contact with the home setting, to encourage good relationships between prisoners and staff and to prepare prisoners for eventual release. Only prisoners serving sentences of over three years are eligible. One third of the net sentence must have been completed (or four years served in the case of a life prisoner) and the prisoner must have been of satisfactory conduct for a reasonable period. When granted, leave may be taken only if the prisoner is able to obtain the voluntary assistance of a member of staff or an allocated prison visitor (a voluntary helper) to act as escorting supervisor. For the first two leaves the escort must be a member of staff. Leave is granted on the understanding "that the prisoner places himself under direct supervision throughout the entire period of his absence from prison". Before going on leave, the prisoner must sign a parole licence acknowledging that he understands the conditions applicable to his period of leave.

29. Under the "Training for Freedom" scheme at Saughton Prison, prior to release prisoners are eligible for the leave entitlement described at paragraph 33 below.

 

E. Penninghame Open Prison, Barlinnie Special Unit and Saughton Training for Freedom Hostel

30. Under Rule 6 of the Prison Rules,

"(1) The Secretary of State may set aside particular prisons or parts of prisons for particular classes of prisoners or particular purposes, including:

(i) the special observation of either unconvicted or convicted prisoners for the purpose of classification, making reports to courts, or otherwise;

(ii) the training of such classes of prisoners sentenced to imprisonment ... as the Secretary of State may from time to time determine.

(2) The Secretary of State may establish or set aside prisons for the treatment in open conditions of selected prisoners or classes of prisoners who have been sentenced to imprisonment or corrective training."

31. An open prison has been established at Penninghame, which houses some 47 prisoners. These prisoners have been individually selected as suitable to serve their sentence in an open prison. Only Category D prisoners can be considered for transfer to Penninghame, but the great majority of Category D prisoners are housed, like Mr. Boyle and Mr. Rice, in closed prisons. The regime at Penninghame Open Prison is more liberal than the ordinary regime in closed prisons. In particular:

(i) prisoners’ mail is not generally read, although the Governor retains discretion to do so;

(ii) visits by friends and relatives, though only allowed once a month, can last for an afternoon between 1.00 p.m. and 3.45 p.m. and can be taken in the grounds at the Governor’s discretion;

(iii) prisoners may be granted occasional leave for the purpose of making visits to local residents at their homes.

In other respects, visits and correspondence are subject to the same rules as in other prisons.

32. A "special unit" was set up in Barlinnie Prison in March 1973 to treat prisoners who were known to be violent, prisoners considered potentially violent and selected long-term prisoners. It was sought to modify the traditional officer/inmate relationship by sharing responsibility between prisoners and staff and encouraging them to regard themselves as a single community. The regime in the Special Unit is substantially different from that in other prisons. In particular, mail is not normally censored, although prisoners are expected to observe the normal rules regarding the content of mail and the Governor retains a discretion to read mail. Visiting is not subject to the normal restrictions as regards time, number or duration of visits. There are opportunities for prisoners to go out of the prison. Those in Security Category D may be allowed to do so without escort. The Special Unit has a maximum of eight prisoners and a four-to-one ratio of staff to prisoners, as opposed to the ratio of one member of staff to four prisoners which is more normal elsewhere.

33. Both Mr. Boyle and Mr. Brian Rice were subject to a "Training for Freedom" scheme during the latter stage of their pre-release programme at Saughton Prison. Prisoners undergoing such training live in a special hostel within the prison and are given regular temporary release for the purpose of working, community service or attending courses in the Edinburgh area. They are also eligible for twelve hours’ unescorted local leave per week and receive one full weekend’s unescorted leave every three weeks during which they may visit their home.

F. Remedies

34. The principal remedies available to prisoners in Scotland in respect of complaints concerning their treatment in prison are

- a complaint to the Governor of the prison;

- a complaint to the Visiting Committee;

- a petition to the Secretary of State;

- a complaint to the Parliamentary Commissioner for Administration;

- an application to the courts for judicial review.

1. Complaint to the Governor

35. By virtue of Rule 50(1) of the Prison Rules, any request by a prisoner to see, inter alia, the Governor or a member of the Visiting Committee must be recorded by the officer to whom it is made and conveyed without delay to the Governor. Under Rule 50(2), the Governor is obliged at a fixed time every day other than Sundays and public holidays to see all prisoners who have requested to see him.

2. Complaint to the Visiting Committee

36. Section 7 of the 1952 Act lays down that the Prison Rules shall provide for the constitution of Visiting Committees. The relevant provision is made in Rule 187 of the Prison Rules. Members of the Visiting Committee for each prison are appointed by the regional, district and island councils - which are composed of elected representatives - in the area served by the prison (section 7(1) of the Act and Rule 187(1)). Visiting Committees and their members are independent of the prison administration. Section 7(3) of the Act specifies that the Prison Rules shall prescribe the functions of Visiting Committees and furthermore that

"[the Rules] shall among other things require the members to pay frequent visits to the prison and hear any complaints which may be made by the prisoners and report to the Secretary of State any matter which they consider it expedient to report; and any member of a Visiting Committee may at any time enter the prison and shall have free access to every part thereof and to every prisoner".

37. Rules 187 to 205 of the Prison Rules deal with the procedures and functions of the Visiting Committees. In particular, Rule 194 reads:

"(1) The Visiting Committee shall hear and investigate any application or complaint which any prisoner may desire to make to them; and, if necessary, report the same, with their opinion, to the Secretary of State. They shall have free access to all parts of the prison and to all prisoners, and may see any such prisoners as they desire, either in their cells or in a room out of sight and hearing of prison officers.

(2) The Visiting Committee shall record in their Minute Book their findings on all such applications or complaints investigated by them, and the result of all visits to, and inspections of, the prison."

Rule 50(4) (see paragraph 38 below) entitles prisoners to write in confidence to the Visiting Committee. Rule 192 lays down the general requirement that the Visiting Committee "shall immediately bring to the notice of the Secretary of State any circumstances connected with the administration of the prison which appear to them to require his consideration".

Rule 199 empowers the Visiting Committee "in any case of special importance or urgency" to "allow a prisoner an additional visit or letter or prolong the period of a visit". By virtue of Rule 203, the Visiting Committee must, before granting any permission (such as leave for an additional visit), consult the prison Governor in order to satisfy themselves that it can be granted without interfering with the security, good order, and government of the prison.

3. Petition to the Secretary of State

38. Inmates have the right to submit petitions to the Secretary of State about any matter, for example to seek a permission which the local prison management is not empowered to grant or has refused, or to complain of prison treatment. There is no restriction on the number or frequency of petitions which a prisoner may make to the Secretary of State on the same or different matters. On a petition being made by a prisoner, complaining of a decision of the prison authorities, the Secretary of State would, if he concluded that the relevant Rules or Standing Orders had not been properly interpreted or applied by the prison authorities, issue directions to them to secure compliance. Although it is possible for him to depart from the Standing Orders in particular cases, this is likely to occur only rarely, if at all, since their very purpose is to ensure uniformity of practice.

Rule 50(4) of the Prison Rules provides:

"Every prisoner intimating to an officer his desire to write a letter of request or complaint to the Secretary of State or the Visiting Committee shall be supplied with paper for the purpose, and the Governor shall see that every such letter is posted without delay. If the prisoner has elected to close the envelope it shall not be opened by the Governor."

Standing Order Jb.1 stipulates that "a prisoner wishing to submit a petition to the Secretary of State shall apply to the Governor. No such application shall be refused".

4. Parliamentary Commissioner for Administration

39. The Parliamentary Commissioner for Administration (commonly known as the Ombudsman) has jurisdiction under the Parliamentary Commissioner Act 1967 to investigate complaints of "maladministration" in Government Departments. Such complaints may be raised with him by any Member of Parliament and, since 1979, the Commissioner has been prepared to refer to a Member of Parliament and consider complaints raised directly with him by members of the public, including prisoners. He must report on investigations he makes both to the Member of Parliament concerned and also to the head of the relevant Department and may make appropriate recommendations. He also reports periodically to Parliament on his activities. Any departure from the statutory or administrative rules governing the regulation of prisons may amount to maladministration. However, his jurisdiction does not extend to restrictions effected pursuant to a correct exercise of a discretion conferred by the Rules or the Secretary of State’s directives. The Parliamentary Commissioner may, where he considers that his investigation shows that injustice has been caused by maladministration and that it has not been or will not be remedied, lay before each House of Parliament a special report on the case. In practice, the Department concerned will normally seek to remedy any injustice found.

5. Application to the courts

40. The exercise by public authorities of statutory powers and duties is subject to review by the courts. The grounds on which judicial review may be open are in substance the same in Scotland as in England and Wales (see Brown v. Hamilton District Council, 1983 Scottish Law Times, 397, per Lord Fraser at p. 414). In particular, an exercise of discretionary power may be challenged on the grounds that the authority concerned has acted arbitrarily, in bad faith, unreasonably, for an improper purpose or otherwise outside its statutory powers (see, for example, the speech of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] Appeal Cases 374 at 410 and [1984] 3 All England Law Reports 935 at 950-951, as quoted in the Weeks judgment of 2 March 1987, Series A no. 114, p. 18, § 30).

The Government cited two cases, both subsequent to the facts complained of in the present proceedings, as examples of the courts adjudicating on the lawfulness of prisoners’ treatment in the light of the statutory powers and duties of the prison authorities. In the case of Raymond v. Honey ([1983] Appeal Cases 1 and [1982] 1 All England Law Reports 759), the House of Lords held that the English Prison Rules and the relevant Standing Orders would be ultra vires and invalid in so far as they purported to restrict a prisoner’s right to unimpeded access to the courts since that right could only be taken away by express enactment. In R. v. Deputy Governor of Camphill Prison, ex parte King ([1984] 3 All England Law Reports 897), the Court of Appeal decided that a prison Governor’s decision on disciplinary matters was not open to judicial review. The Court of Appeal explained that if a prisoner has a well-founded complaint that a Governor has misconstrued a Prison Rule the appropriate method to seek redress is to petition the Secretary of State inviting attention to the misconstruction, and then if the Secretary of State rejects the petition he may apply for judicial review of the Secretary of State’s decision in the form of a declaration as to the correct construction (ibid., pp. 902, 904 and 905).

PROCEEDINGS BEFORE THE COMMISSION

41. The application of James and Sarah Boyle (no. 9658/82) was lodged with the Commission on 4 March 1981 and that of Brian and John Rice (no. 9658/82) on 15 January 1982.

42. In their application, Mr. and Mrs. Boyle claimed that the following matters occurring during the relevant period (see paragraph 12 above) constituted separate and cumulative violations of their right, under Article 8 (art. 8) of the Convention, to respect for their family and private life and home and correspondence:

(1) the refusal by the authorities to permit Mr. Boyle to receive visits in Saughton Prison for more than one hour a month;

(2) the refusal by the authorities to permit him to send more than one free letter a week;

(3) censorship of the applicants’ mail and the reading of some of it in public by prison officers in a manner seriously inhibiting and embarrassing for the applicants;

(4) denial of access to a telephone while in Saughton Prison;

(5) the refusal of the prison authorities in July 1981 to post a letter from Mr. Boyle to a friend of his, Mr. McDougall;

(6) refusal to allow Mr. Boyle to visit his home other than under a special escorted leave which affords no privacy.

Mr. Boyle further maintained that the matters listed in (1) to (6) above, as well as the lack of telephone, typewriting and sculpting facilities, violated his freedom of expression as guaranteed by Article 10 (art. 10) of the Convention. Both applicants also submitted that prisoners in the Special Unit of Barlinnie or in the open prison at Penninghame enjoyed more favourable conditions as regards visits and correspondence than Mr. Boyle had enjoyed as a prisoner at Saughton Prison; and that this differential treatment constituted discrimination contrary to Article 14 of the Convention taken in conjunction with Article 8 (art. 14+8) and, for Mr. Boyle, also Article 10 (art. 14+10). Finally, they contended that, in breach of Article 13 (art. 13), there was no effective remedy before a national authority in respect of their other complaints under the Convention.

By letter dated 6 August 1982, Mr. Boyle submitted a number of further complaints, alleging violation of Articles 8, 10 and 14 (art. 8, art. 10, art. 14).

43. The second set of applicants alleged breach of Article 8 (art. 8) during Brian Rice’s period at Saughton Prison

(1) in respect of both of them, because Brian Rice had been refused compassionate leave to visit his father John Rice who was ill;

(2) in respect of Brian Rice, because he was entitled to only twelve prison visits a year; and also because various letters had been either delayed or stopped by the prison authorities.

Brian Rice further contended that the restriction on prison visits violated his freedom to receive and impart ideas under Article 10 (art. 10). In the submission of both applicants, the fact that the regime applicable in open prisons was more liberal than that at Saughton Prison with regard to visits and correspondence gave rise to discrimination contrary to Article 14 taken in conjunction with Article 8 (art. 14+8) and, for Brian Rice, also Article 10 (art. 14+10). Finally, both applicants alleged that, in breach of Article 13 (art. 13), there was no effective remedy before a national authority in respect of the claims presented in their application.

44. By partial decision dated 5 May 1983, the Commission adjourned examination of Mr. and Mrs. Boyle’s complaints concerning correspondence and their complaints under Article 13 (art. 13), but rejected, as being manifestly ill-founded (Article 27 § 2) (art. 27-2), the remainder of their application. On 6 March 1985, the Commission declared admissible the complaints (under Article 8) (art. 8) as to the stopping of the letter to Mr. McDougall and (under Article 13) (art. 13) as to the alleged lack of effective remedies in respect of this and the other grievances concerning restrictions on correspondence, the limitation of twelve prison visits per year, the supervision imposed under the "special escorted leave" system and differential prison regimes; the remaining part of the application was declared inadmissible, as being manifestly ill-founded.

45. By partial decision dated 5 May 1983, the Commission rejected, as being manifestly ill-founded, the application of Brian and John Rice, with the exception of the complaint under Article 13 (art. 13), which was adjourned for further examination. On 6 March 1985, the Commission declared this remaining complaint admissible.

46. The Commission ordered the joinder of the two applications on 10 July 1985 under Rule 29 of its Rules of Procedure.

47. In its report adopted on 7 May 1986 (Article 31) (art. 31), the Commission expressed the opinion that

- the stopping of Mr. Boyle’s letter to a "media personality" had constituted a breach of Article 8 (art. 8) (unanimously);

- there had been a breach of Article 13 (art. 13) in respect of the common complaint concerning limited prison visiting entitlement (thirteen votes to one) and the complaint concerning the refusal to grant Brian Rice compassionate leave to visit his sick father (unanimously);

- there had been no breach of Article 13 (art. 13) in respect of any of the applicants’ other complaints (unanimously on four counts and by thirteen votes to one on two counts).

The full text of the Commission’s opinion and of the one separate opinion contained in the report is reproduced as an annex to the present judgment.

FINAL SUBMISSIONS TO THE COURT

48. At the hearing on 18 May 1987, the Government, by way of concluding submission, asked the Court

"to decide

(1) that the stopping of Mr. Boyle’s letter to Mr. McDougall constituted a breach of Article 8 (art. 8);

(2) that there has been no breach of Article 13 (art. 13) in respect of any of the applicants’ complaints; and

(3) that any claim for satisfaction under Article 50 (art. 50) should, consistently with those other findings, be rejected".

49. The applicants, in their pleadings at the hearing, maintained in substance the conclusion in their memorial, in which they requested the Court "to uphold the findings of the Commission in paragraphs 117(5), (7) and (9) and to reverse the findings of the Commission in paragraphs 117(1)-(4), (6) and (8) of the report".

AS TO THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

50. Mr. Boyle contended that the stopping by the Prison Governor in July 1981 of a letter he had written to a playwright friend (see paragraphs 15 and 42 above), was in breach of Article 8 (art. 8) of the Convention, which provides:

"1. Everyone has the right to respect for his private and family life ... and 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."

At the time, Mr. Boyle petitioned the Secretary of State for Scotland, but his petition was rejected on the ground that the letter, being intended for publication or for use on wireless or television, was "objectionable matter" under the relevant rules (Rule 74(4) of the Prison Rules and Standing Order Ic.1(3) - see paragraphs 22 and 25 above). The Government have subsequently acknowledged, before both the Commission and the Court, that the rules had been wrongly applied since the letter was a purely personal one and should have been allowed to pass. In their concluding submissions, the Government accepted that the stopping of the letter violated Article 8 (art. 8) (see paragraph 48 above).

The Court agrees with the Commission in finding that there has been a breach of Article 8 (art. 8).

II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)

51. All four applicants claimed that no effective remedy had been available to them under Scots law in relation to various complaints they had under the Convention regarding the treatment undergone in Saughton Prison, Edinburgh, by James Boyle and Brian Rice. They alleged violation of Article 13 (art. 13) of the Convention, which provides:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

A. Introduction

52. The stopping of one of Mr. Boyle’s letters has been found by the Court to constitute a breach of Article 8 (art. 8) (see paragraph 50 above). All the remaining claims of violation forming the basis of the applicants’ complaints under Article 13 (art. 13) were rejected by the Commission at the admissibility stage on the ground of being manifestly ill-founded (Article 27 § 2 of the Convention - see paragraphs 44 and 45 above) (art. 27-2).

Notwithstanding the terms of Article 13 (art. 13) read literally, the existence of an actual breach of another provision of the Convention (a "substantive" provision) is not a prerequisite for the application of the Article (art. 13) (see the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 29, § 64). Article 13 (art. 13) guarantees the availability of a remedy at national level to enforce - and hence to allege non-compliance with - the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 74, § 205, and the authorities cited there).

However, Article 13 (art. 13) cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see, as the most recent authority, the Leander judgment of 26 March 1987, Series A no. 116, p. 29, § 77 (a)).

53. The Government maintained that a claim of violation of one of the substantive Articles of the Convention which has been declared by the Commission to be "manifestly ill-founded" cannot be regarded as "arguable" for the purposes of Article 13 (art. 13).

The Commission did not agree with this contention. According to the Delegate, in deciding whether a complaint is "manifestly ill-founded" under Article 27 § 2 (art. 27-2), the Commission applied a spectrum of standards that encompassed but ranged beyond absence of arguability. In his submission, to be arguable a claim "only needs to raise a Convention issue which merits further examination", whereas a conclusion that a complaint is manifestly ill-founded may be reached after considerable written and oral argument.

54. As the Court pointed out in its Airey judgment of 9 October 1979, rejection of a complaint as "manifestly ill-founded" amounts to a decision that "there is not even a prima facie case against the respondent State" (Series A no. 32, p. 10, § 18). On the ordinary meaning of the words, it is difficult to conceive how a claim that is "manifestly ill-founded" can nevertheless be "arguable", and vice versa.

This does not mean, however, that the Court must hold a claim to be excluded from the operation of Article 13 (art. 13) if the Commission has previously declared it manifestly ill-founded under the substantive Article. The Commission’s decision declaring an application admissible determines the scope of the case brought before the Court (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 63, § 157). The Court is precluded from reviewing on their merits under the relevant Article the complaints rejected as manifestly ill-founded, but empowered to entertain those complaints which the Commission has declared admissible and which have been duly referred to it. The Court is thus competent to take cognisance of all questions of fact and of law arising in the context of the complaints before it under Article 13 (art. 13) (ibid.), including the arguability or not of the claims of violation of the substantive provisions. In this connection, the Commission’s decision on the admissibility of the underlying claims and the reasoning therein, whilst not being decisive, provide significant pointers as to the arguable character of the claims for the purposes of Article 13 (art. 13).

55. The Court does not think that it should give an abstract definition of the notion of arguability. Rather it must be determined, in the light of the particular facts and the nature of the legal issue or issues raised, whether each individual claim of violation forming the basis of a complaint under Article 13 (art. 13) was arguable and, if so, whether the requirements of Article 13 (art. 13) were met in relation thereto.

B. The individual claims

1. Mr. and Mrs. Boyle’s complaint regarding letter postage

56. Mr. and Mrs. Boyle complained that the restrictions imposed on Mr. Boyle by the rules on the payment of postage for letters sent by prisoners were inconsistent with their right to respect for correspondence under Article 8 (art. 8) of the Convention (see paragraph 42 above). By virtue of these rules, the prison authorities paid the postage of one outgoing letter per week and the postage of additional letters could be met from prison earnings but not from the prisoner’s general financial resources (see paragraph 23 above). Mr. Boyle objected to the latter restriction on the ground that his prison wages were insufficient to pay for additional letters as a result of his using his earnings to supplement his vegetarian diet (see paragraph 13 above).

57. In its final admissibility decision of 6 March 1985, the Commission rejected the Article 8 (art. 8) complaint under this head as manifestly ill-founded on the ground that the applicants had not substantiated that Mr. Boyle’s correspondence had been severely restricted for financial reasons. In its report (paragraphs 89-90), the Commission considered that the claim of violation of Article 8 (art. 8) was not an arguable one for the purposes of Article 13 (art. 13).

58. The Court reaches the same conclusion. In particular, in its view, the rules on payment of postage are not in themselves unreasonable. Nor is there any suggestion that the vegetarian diet provided to Mr. Boyle in prison was inadequate, so that he was forced to spend his earnings on extra food rather than correspondence. Accordingly, no breach of Article 13 (art. 13) can be found under this head.

2. Mr. Brian Rice’s complaint regarding delay of or refusal to post certain letters

59. Mr. Brian Rice claimed that, in breach of Article 8 (art. 8), various letters had been either delayed or stopped by the prison authorities (see paragraph 43 above). His solicitors raised the matter with the Secretary of State for Scotland in July 1981, but it was pointed out in reply that all his mail had been posted (see paragraph 20 above).

In these circumstances and in the absence of any further information, the Commission, by partial admissibility decision of 5 May 1983, rejected the complaint under Article 8 (art. 8) as manifestly ill-founded on the ground that it had not been substantiated. For the same reason, it considered in its report (paragraph 88) that no arguable claim for the purposes of Article 13 (art. 13) had been made out.

60. The Court likewise finds, on the evidence adduced, the absence of any arguable claim of violation of Article 8 (art. 8). Accordingly, there is no violation of Article 13 (art. 13) in relation to this complaint.

3. Mr. and Mrs. Boyle’s complaint regarding screening of correspondence

61. Mr. and Mrs. Boyle complained of the fact that during Mr. Boyle’s stay at Saughton Prison his incoming and outgoing correspondence had been read or screened by the prison censor in pursuance of the relevant rules, whereas prior to that, when in the Barlinnie Special Unit, he had been allowed to write and receive uncensored mail (see paragraphs 10, 14, 22, 24, 31 and 42 above).

When rejecting this complaint as manifestly ill-founded (final admissibility decision of 6 March 1985), the Commission reaffirmed its previous case-law to the effect that the mere supervision of prisoners’ correspondence is in principle justified under paragraph 2 of Article 8 (art. 8-2). Reiterating the same principle in its report (paragraphs 91-92), the Commission did not consider that this complaint gave rise to an arguable claim under the Convention.

62. The Court has itself recognised in previous judgments that some measure of control over prisoners’ correspondence is called for and is not of itself incompatible with the Convention (see, for example, the Silver and Others judgment of 25 March 1983, Series A no. 61, p. 38, § 98). It is true that for more than seven years prior to being moved to Saughton Prison Mr. Boyle had benefited from the more liberal regime practised in the Barlinnie Special Unit. However, the Special Unit was designed to serve a special purpose in relation to an especially difficult but small category of prisoners (see paragraph 32 above). Mr. Boyle was transferred from the Special Unit in order to undergo a pre-release programme, the factors dictating the choice of Saughton Prison being reasonable in themselves (see paragraph 11 above). It is not open to criticism that when at Saughton Prison he should have been required to serve his time on the same terms and conditions as the other prisoners there.

The Court, like the Commission, therefore concludes that no arguable claim of violation of Article 8 (art. 8) has been made out under this head. Consequently, the Court finds no violation of Article 13 (art. 13) in respect of this complaint.

4. Mr. and Mrs. Boyle’s complaint that his mail was read aloud

63. It was also alleged that on occasions the prison censorship officer read Mr. Boyle’s mail aloud in front of other inmates in a manner that was embarrassing and inhibiting for him and his wife (see paragraphs 14 and 42 above). The Government denied the allegation and pointed out that at the time Mr. Boyle had made no complaint to the Prison Governor about the prison censor’s conduct (see paragraph 14 above).

64. At the admissibility stage (final decision of 6 March 1985), the Commission found that on the evidence presented it had not been shown that the supervision of the applicants’ correspondence was disrespectful of their rights under Article 8 (art. 8). The complaint was rejected as manifestly ill-founded.

In its report (paragraphs 93-95), the Commission did not find it necessary to discuss whether or not the claim was an arguable one for the purposes of Article 13 (art. 13). It noted that the complaint was directed against the implementation of the relevant norms; and concluded that there had been no breach of Article 13 (art. 13) since a petition to the Secretary of State for Scotland would have furnished an effective remedy for ventilating such a grievance.

65. Even on the assumption that the claim of violation of Article 8 (art. 8) was arguable for the purposes of Article 13 (art. 13), which the Government denied, the Court reaches the same conclusion as the Commission. The conduct alleged by the applicants would no doubt have constituted an abuse of the power to "read" correspondence as conferred by the Prison Rules (Rule 74(4) - see paragraph 22 above). It would certainly have been contrary to the Standing Orders, which provided that "in no circumstances should the contents of a letter to a prisoner or inmate be referred to in the hearing of another inmate" (Standing Order Ic.4(9) - see paragraph 24 above). Whilst the Standing Orders were not public at the relevant time, a complaint to the Prison Governor and, if necessary, a petition to the Secretary of State (see paragraphs 21, 35 and 38 above) would have provided an effective remedy under domestic law (see also the above-mentioned Silver and Others judgment, Series A no. 61, p. 43, § 116, and the Leander judgment, Series A no. 116, pp. 31-32, §§ 83-84).

Accordingly, there has been no breach of Article 13 (art. 13) in relation to this complaint.

5. Mr. Boyle’s complaint regarding the stopping of a letter

66. The facts underlying this complaint are those found by the Court to have constituted a violation of Article 8 (art. 8) (see paragraph 50 above).

67. The matter complained of, concerning as it did implementation of the relevant rules, could be - and indeed was (see paragraph 15 above) - raised by means of petition to the Secretary of State. The fact that the Secretary of State - wrongfully, as the Government now concede - rejected the petition does not alone establish that the remedy provided was ineffective (see, mutatis mutandis, the Swedish Engine Drivers’ Union judgment of 6 February 1976, Series A no. 20, p. 18, § 50). On this, the Court agrees with the Commission’s report.

Moreover, as the Government indicated, Mr. Boyle could have renewed his petition (see paragraph 38 above), pointing out that his letter did not in fact come within the scope of the general prohibition laid down in the rules. Additionally or alternatively, he could have applied to the courts for judicial review on the ground that the Secretary of State’s decision was unreasonable, having been based on a manifest error (see paragraph 40 above).

The Court accordingly finds that the remedies available to Mr. Boyle in respect of this complaint were sufficient to meet the requirements of Article 13 (art. 13) which was therefore not breached.

6. The applicants’ complaint regarding a limited visiting entitlement

68. James and Sarah Boyle and Brian Rice alleged violation of Article 8 (art. 8) by reason of the limited number of visits to which they were entitled and which they received under the relevant rules, notably Rule 74(2) of the Prison Rules and Standing Order Ic.7 and 8 (see paragraphs 16, 19, 22, 26, 42 and 43 above).

As counsel for the applicants made clear at the hearing before the Court, their complaint was not that there was "special importance or urgency" in their cases which would have justified an extra visit at a particular time. Thus, as the Government conceded, the power of the Visiting Committee to allow an additional or longer visit in such exceptional circumstances (Rule 199 of the Prison Rules - see paragraph 37 above) is not material to the grievance under consideration.

Nor did the applicants object that they had been denied their due entitlement; rather their submission was that the content of the relevant norm was inadequate since it granted a right to only twelve visits a year of one hour’s duration.

69. In its partial admissibility decisions of 5 May 1983 concerning the Rice and Boyle applications, the Commission reiterated its previously stated view that Article 8 (art. 8) of the Convention does not go so far as to require that prisons provide unlimited visiting facilities to prisoners.

70. As to the facts in the Rice case, the Commission considered that, in view of Brian Rice’s permission to leave prison unescorted to attend college and to do community work (see paragraph 19 in fine above), his contact with the outside world could not be said to have suffered. Nor had it been shown that the general restriction on visits had hindered his effective contact with close family members other than his ill father. Finally, he had himself expressed a preference, on educational grounds, for Saughton Prison rather than Penninghame Open Prison where visiting conditions were more favourable (see paragraph 18 above). In these circumstances, the Commission declared the complaint under Article 8 (art. 8) manifestly ill-founded.

71. As regards the Boyle case, the Commission noted in its partial admissibility decision of 5 May 1983 that Mr. Boyle was fully aware of the advantages offered by Saughton Prison in relation to his pre-release programme, to the point of having expressed a preference for a location in Edinburgh rather than a more "open" prison such as Penninghame (see paragraph 11 above). Further, he was only subject to these restrictions during his stay at Saughton Prison for approximately thirteen months and during that time he was able to benefit from home visits under the special escorted leave scheme (see paragraphs 12 and 16 above). The Commission nevertheless recognised that "the unwillingness of the authorities to exercise their discretion under the Prison Rules to permit [Mr. Boyle] greater contact with his wife ... inevitably gave rise to considerable resentment by [Mr. Boyle]". However, taking all factors into account, the Commission could not find that the balance struck by the authorities between Mr. Boyle’s interests and Mr. and Mrs. Boyle’s family life, on the one hand, and administrative and security requirements, on the other hand, was so unreasonable as to amount to an interference with their rights under Article 8 (art. 8). The complaint under that Article (art. 8) was declared manifestly ill-founded.

72. In its report (paragraph 100), the Commission analysed the complaint as being "essentially directed to the limited visiting facilities as contained in the relevant norms and not to the implementation of those norms". In its view, the claim made was both arguable and one in respect of which no effective remedy existed. The Commission therefore concluded that there had been a breach of Article 13 (art. 13).

73. At the time, the rules issued by the Secretary of State in effect left a discretion to prison governors to vary the frequency and duration of prison visits provided that the total visiting hours were not less than the minimum (of three visits of half an hour every two months) specified in the Standing Orders (Rule 74(2) of the Prison Rules and Standing Order Ic.7 and 8 - see paragraphs 22 and 26 above). It was the "arrangement" at Saughton Prison which provided for one visit of one hour’s duration per month (see paragraph 26 above).

74. When assessing the obligations imposed on the Contracting States by Article 8 (art. 8) in relation to prison visits, regard must be had to the ordinary and reasonable requirements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner’s contact with his family (see the above-mentioned Silver and Others judgment, Series A no. 61, p. 38, § 98). On this basis, no arguable claim has been made out in so far as the applicants’ grievance is that it is contrary to Article 8 (art. 8) for convicted prisoners in general or even those, like themselves, in the lowest security category to be restricted to twelve visits a year of one hour’s duration. Consequently, no violation of Article 13 (art. 13) can be found in this connection.

75. On the other hand, notwithstanding the terms of the applicable norms, the particular circumstances of an individual prisoner may raise an arguable issue under Article 8 (art. 8) in relation to visits.

It was admittedly no part of the applicants’ case either that there were any circumstances of importance or urgency justifying the intervention of the Visiting Committee or that there had been a failure by the prison authorities to implement correctly the Prison Rules or the Standing Orders. Nevertheless, in its admissibility decisions, the Commission appears to have construed the grievance as being, at least in part, that discretion had not been exercised in their favour so as to bring their visiting entitlement up to a level allowing adequate contact with their families (see paragraphs 70 and 71 above). In the Court’s view, whether any claim of violation of Article 8 (art. 8) couched in such terms is arguable is open to considerable doubt, notably for the reasons given in the Commission’s admissibility decisions and also because it must be recognised that in general it is justifiable to apply to prisoners a uniform regime avoiding any appearance of arbitrariness or discrimination.

In any event, in so far as the alleged inadequacy of visiting facilities flowed from a decision by the Governor of Saughton Prison, a remedy existed by way of petition to the Secretary of State, backed up if need be by an application to the courts for judicial review (see paragraphs 38 and 40 above). The applicants’ solicitors did in fact raise the matter with the Secretary of State (see paragraphs 16, 17 and 20 above). The lack of success of these representations does not in itself demonstrate that petition to the Secretary of State was an ineffective remedy for airing such complaints (see paragraph 67 above).

76. Accordingly, however the applicants’ grievance is construed, there has been no violation of Article 13 (art. 13) under this head.

7. Mr. and Mrs. Boyle’s complaint regarding special escorted leave

77. Mr. and Mrs. Boyle also complained of the refusal to allow Mr. Boyle to visit home other than under the special escorted leave scheme which involved the constant supervision of a prison officer (see paragraphs 16, 28 and 42 above).

At the admissibility stage (partial decision of 5 May 1983), the Commission rejected the complaint as manifestly ill-founded for the reason that supervised visits of this kind did not constitute an interference with the applicants’ right to respect for private and family life under Article 8 (art. 8). In its report, the Commission doubted whether the claim could be regarded as arguable "since the Convention does not guarantee the right of a prisoner to be released on home leave of this kind" (paragraph 103). In any event, so the Commission concluded, the scheme and the restrictive conditions it contained being laid down in a notice issued by the Governor of Saughton Prison, a petition to the Secretary of State would have been an effective remedy.

78. The Court likewise finds that, even assuming the claim to be arguable, an effective remedy existed in the form of a petition to the Secretary of State, who was competent to examine both the terms of the scheme and the individual decisions taken thereunder by the Governor (see paragraph 38 above). Again, this conclusion is not affected by the unsuccessful outcome of the representations made to the Secretary of State in this connection by the applicants’ solicitors (see paragraph 17 above).

There has therefore been no violation of Article 13 (art. 13) in relation to this complaint.

8. Brian and John Rice’s complaint regarding compassionate leave

79. Brian and John Rice alleged violation of Article 8 (art. 8) by reason of the refusal by the Secretary of State in May 1981 to grant Brian Rice compassionate leave to visit his father, John Rice, who was chronically sick and unable to travel to visit him in prison (see paragraphs 18, 19 and 43 above). Brian Rice’s request, made by petition to the Secretary of State (see paragraph 38 above), was refused because, on the material presented, it did not meet one of the required conditions laid down under the Standing Orders, namely that the relative in question should be dangerously ill (Standing Order Jc.3 - see paragraph 27 above). In the words of counsel for the applicants at the hearing before the Court, the complaint was not that the Secretary of State had misapplied the relevant Standing Order, but rather was directed against the restrictive content of the norm itself.

80. In its partial admissibility decision of 5 May 1983, the Commission noted that Brian Rice had been allowed a visit home in August 1980 and that prior to the commencement of his Training for Freedom programme in September 1981 he had spent five days on leave at home (see paragraph 19 in fine above). The Commission considered, having regard to the administrative burden involved in organising such visits, that the requirement for a near relative to be dangerously ill was neither unreasonable nor inconsistent with the principles inherent in Article 8 (art. 8). In the circumstances of the case, no interference with the applicants’ right to respect for family life could be found. The complaint under Article 8 (art. 8) was accordingly declared manifestly ill-founded.

In its report (paragraphs 105-108), however, the Commission took the view that the claim of violation of Article 8 (art. 8) was arguable; and further, being directed against both the decision of the Secretary of State and the terms of the Standing Order, was one in respect of which no effective remedy existed. The Commission therefore concluded that there had been a breach of Article 13 (art. 13) as far as this complaint was concerned.

81. As in the context of visits in prison, regard must be had to the degree of discretion enjoyed by the national authorities in regulating a prisoner’s contact with his family (see paragraph 74 above). In the Court’s opinion, on this basis it cannot be said that the contested condition for compassionate leave specified in the Standing Orders was in itself capable of grounding an arguable claim of violation of Article 8 (art. 8).

82. Neither can it reasonably be contended that, in the light of the personal circumstances of these two applicants, the refusal to make "a special exception" in their case (see the letter quoted at paragraph 19 above) was such as to raise an arguable issue under Article 8 (art. 8). Thus, there has never been any suggestion that Brian Rice’s request was not properly considered. Other relevant factors include the proximity of his transfer to the Training for Freedom scheme and the opportunities for home leave available under that scheme as well as those previously available under the special escorted leave scheme, and the advice given to him by the prison authorities to make another request if his father’s condition deteriorated in the meantime (see paragraphs 19, 20, 28 and 33 above).

83. In these circumstances, the Court finds no violation of Article 13 (art. 13) in respect of this complaint.

9. The applicants’ complaint as to differences in prison regimes

84. All four applicants complained of the fact that the conditions relating to visits and correspondence in Saughton Prison were less favourable than those obtaining in the Barlinnie Special Unit or an open prison (see the summary of the facts at paragraphs 9 to 33 above and especially paragraphs 31 and 32). They alleged that this differential treatment was discriminatory in violation of Article 14, taken in conjunction with Article 8 and with Article 10 (art. 14+8, art. 14+10), which protects the right to freedom of expression (see paragraphs 42 and 43 above). Article 14 (art. 14) provides:

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

85. The Commission rejected the complaint of discrimination under Article 14 (art. 14) as manifestly ill-founded since "the difference in treatment ... finds an objective and reasonable justification in the different nature of the security considerations confronting each type of prison" (partial admissibility decisions of 5 May 1983).

In its report (paragraphs 109-112), the Commission took the view that the complaint made did not give rise to a prima facie issue under Article 14 (art. 14) and thus could not be regarded as an arguable claim for the purposes of Article 13 (art. 13).

86. The Court, like the Commission, finds it evident that in principle the difference in treatment complained of does not raise an arguable issue of discrimination under Article 14 (art. 14).

Nonetheless, the matter cannot be examined in isolation of the applicants’ personal circumstances. For Mr. and Mrs. Boyle especially, it must have been unpleasant returning to the constraints of a traditional prison regime after some years of experience under the more liberal regime at the Barlinnie Special Unit (see paragraph 10 above). However, the number of places in the only existing "open" prison, Penninghame, was limited (see paragraph 31 above). Moreover, both James Boyle and Brian Rice had expressed a preference to do their pre-release training at Saughton Prison (see paragraphs 11 and 18 above). All prisoners at Saughton Prison were subject to the same treatment, including those who, like these two applicants, were in the lowest security category (Category D) (ibid.). The Court cannot find that either the factors governing the choice of Saughton Prison for the latter part of these two applicants’ sentences (ibid.) or the treatment undergone by them once at Saughton Prison were such as to ground an allegation of discrimination under Article 14 (art. 14).

Accordingly, no arguable claim of violation of Article 14 (art. 14) has been made out. This being so, the Court finds no violation of Article 13 (art. 13) in relation to this complaint.

C. Conclusion

87. During the course of the pleadings before the Court, considerable argument was presented as to the requirements of Article 13 (art. 13) in circumstances where the complaint is directed against the content of the applicable national norms - as laid down in primary legislation, subordinate legislation or internal administrative directives - rather than against the implementation of the norms. In particular, the question was raised whether Article 13 (art. 13) imposed a duty on a Contracting State to make available a remedy enabling an individual to challenge the terms of subordinate legislation (see the above-mentioned Lithgow and Others judgment, Series A no. 102, p. 74, § 206, which speaks of "laws" and where the subject of complaint was primary legislation); and there was dispute as to the nature of the remedy required by Article 13 (art. 13) when the applicable national norms are themselves fully compatible with the substantive provisions of the Convention (see, inter alia, the above-mentioned Silver and Others judgment, Series A no. 61, p. 44, § 118, and the James and Others judgment of 21 February 1986, Series A no. 98, p. 48, § 86).

In view of its above findings in relation to the individual complaints made by the applicants, the Court considers it unnecessary to go into these issues of interpretation in the present case.

88. In conclusion, the facts of the case disclose no violation of Article 13 (art. 13) in respect of any of the applicants’ complaints.

III. APPLICATION OF ARTICLE 50 (art. 50)

89. By way of just satisfaction, the applicants sought reimbursement of the costs and expenses incurred by them in vindicating their rights under the Convention. Article 50 (art. 50) provides:

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

No claim was made in respect of damage sustained, whether pecuniary or non-pecuniary. The total amount sought in respect of costs and expenses, detailed particulars of which were supplied by the applicants, was £35,194.83 (£17,838.90 for James and Sarah Boyle and £17,355.93 for Brian and John Rice). The costs and expenses were referable both to the complaints under the substantive Articles of the Convention and to those under Article 13 (art. 13), and both to steps taken in Scotland and to the proceedings before the Convention institutions.

90. The Government, whilst not resisting the claim in principle, submitted that whatever costs are allowed should relate only to those complaints which have led to findings of a violation.

91. The sole aspect of the case on which the Court has found a violation of the Convention is the uncontested claim under Article 8 (art. 8) concerning the stopping of Mr. Boyle’s letter to Mr. McDougall, which occurred in July 1981, that is some months after the introduction of Mr. and Mrs. Boyle’s intitial application with the Commission (see paragraphs 15, 41 and 50 above). All the other complaints presented by the applicants either were declared inadmissible by the Commission (see paragraphs 42-45 above) or have been rejected as unfounded by the Court in the present judgment.

In these circumstances, the Court considers that no costs or expenses are recoverable on behalf of Brian and John Rice and only a proportion of those incurred in connection with the representation of James and Sarah Boyle (see, mutatis mutandis, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 33, § 86, and the Le Compte, Van Leuven and De Meyere judgment of 18 October 1982, Series A no. 54, p. 10, § 21). Making an assessment on an equitable basis as is required by Article 50 (art. 50), the Court holds that Mr. Boyle should be awarded £3,000. This figure is to be increased by any value-added tax that may be chargeable.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 8 (art. 8) of the Convention in the case of Mr. James Boyle;

 

2. Holds that there has been no violation of Article 13 (art. 13);

 

3. Holds that the United Kingdom is to pay to Mr. James Boyle, in respect of costs and expenses, the sum of £3,000 (three thousand pounds), together with any value added tax that may be chargeable;

 

4. Rejects the remainder of the claims for just satisfaction.

 

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 April 1988.

 

Rolv RYSSDAL

President

 

Marc-André EISSEN

Registrar

 

In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the separate opinion of Judge De Meyer is annexed to the present judgment.

 

R. R.

M.-A. E.

 

SEPARATE OPINION OF JUDGE DE MEYER

While concurring in the practical result of this judgment, I have to express some reservations.

 

I.  In my view one cannot require that a grievance must be "arguable" in order to deserve the existence of a remedy as mentioned in Article 13 (art. 13) of the Convention[1].

In principle, such a remedy must be available to everyone who believes, for whatever reason, that any of his fundamental rights have been violated[2]. The question whether the complaint is, or is not, arguable has then to be considered by the "authority" concerned, and later on, if need be, by the Commission and by ourselves.

In practice, however, the question whether an "effective remedy before a national authority" does or does not exist, has, in my opinion, only to be considered by us if we find that the right which is alleged to be violated was, indeed, "violated"[3].

The non-existence of such remedy is, then, an aggravating circumstance of that violation.

One may feel that the very wording of Article 13 (art. 13) in some way expresses that idea, since it refers to rights which "are violated" and not, as Article 24 (art. 24), to an "alleged breach" of the Convention nor, as Article 25 (art. 25), to a person, organisation or group "claiming to be a victim of a violation" of his, her or its rights.

If we decide that the right concerned was not violated, the non-existence of a remedy as mentioned in Article 13 (art. 13) has no further practical significance[4].

 

II. As I said already in a separate opinion concerning the case of W v. the United Kingdom[5], I am not convinced that "the Commission’s decision declaring an application admissible determines the scope of the case brought before the Court"[6].

I feel that we have to take each case referred to us as a whole, with all the questions of fact and of law arising in it.

In the present case however it appears to me that, except for the complaint concerning the stopping of the letter written by Mr. Boyle to Mr. McDougall in July 1981[7], the petitions of the applicants were, as far as the rights defined in Article 8 (art. 8) of the Convention are concerned, ill-founded, perhaps not "manifestly", as decided by the Commission[8], but anyway ill-founded.

According to the reasoning developed above, in section I of this opinion, there was therefore, to the same extent, no further need to consider them in the context of Article 13 (art. 13).

In respect of the complaint concerning the stopping of the letter just referred to, I agree that sufficient remedies were available[9]. By the way, since that complaint was not brought before the Scottish courts[10], one may feel that it should have been declared inadmissible under Article 26 (art. 26) of the Convention.

 

[*] Note by the Registrar: The case is numbered 19/1986/117/165-166. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] Paragraph 52 of the judgment.

[2] See the judgment of 6 September 1978 in the case of Klass and Others, Series A no. 28, p. 29, § 64.

[3] To that extent, I disagree with what was said in the Klass and Others judgment, at paragraph 65.

[4] Of course, in an earlier stage of the proceedings, it has some importance for the application of Article 26 (art. 26), since one can hardly conceive how a non-existing remedy should be "exhausted".

[5] Series A no. 121, p. 42.

[6] Paragraph 54 of the judgment in the present case.

[7] Paragraph 15 of the judgment.

[8] Paragraphs 44 and 45 of the judgment.

[9] Paragraphs 66 and 67 of this judgment.

[10] Paragraph 40 of the judgment.

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