AS TO THE ADMISSIBILITY OF
Application No. 12395/86
by Peter CHESTER
against the United Kingdom
The European Commission of Human Rights sitting in private on
10 July 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 March 1986
by Peter CHESTER against the United Kingdom and registered on
19 September 1986 under file No. 12395/86;
Having regard to:
- the reports provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the Commission's decision of 3 May 1988 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government
on 18 July 1988 and the observations in reply submitted
by the applicant on 20 February 1989;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom, born in 1954
and detained in H.M. Prison Wakefield, where he is serving a sentence
of life imprisonment.
This is the applicant's second application to the Commission.
His first, No. 9488/81, concerning the censorship of prisoners'
correspondence, was the subject of a decision by the Committee of
Ministers that the applicant had suffered a violation of Article 8 of
the Convention (Resolution DH (86) 6).
The facts of the present case as submitted by the parties may
be summarised as follows:
1. On 6 March 1986, whilst the applicant was detained at H.M.
Prison Parkhurst he was involved in certain disturbances and placed in
the punishment block of the prison. He complained to the prison
Governor and allegedly wrote a letter about the incident to a
gentleman at the Home Office, but that letter was never received by
the addressee. However, there is no prison record of this letter's
existence.
2. The applicant was allowed to write the following week to his
Member of Parliament, Lord Avebury, but a letter dated 9 March 1986 to
Mr. D. Speakman was stopped, because it contained complaints which had
not been put to the prison Governor or Home Office. He was given an
opportunity to rewrite the letter (presumably omitting the offending
passages).
The Government stated before the Commission that, for the
protection of prison staff, prisoners were generally required to air
any complaints about prison treatment or staff misconduct through
internal channels before or at the same time as they complained
externally. (The simultaneous ventilation restriction did not apply
to correspondence with solicitors at the material time and has since
been abolished altogether.) The prescribed procedures were set out in
Standing Order 5B, which is published and available to inmates.
Standing Order 5B 34(j) prohibited correspondence containing certain
types of complaint:
"Complaints about prison treatment which the inmate has not
yet raised through the prescribed procedures unless the
complaints are about a matter already decided at region
headquarters or the complaints are about a matter which
does not require investigation or on which no corrective
or remedial action is possible, such as complaints of a
general nature about conditions, e.g. about overcrowding
or poor facilities, which are basically descriptive of
the conditions the inmate is experiencing and his feelings
about them. As soon as a complaint about prison treatment
has been made through the prescribed procedures it may be
mentioned in correspondence. The prescribed procedures are:
i. with respect to an adjudication, by petition to the
Secretary of State;
ii. with respect to an allegation of misconduct or
impropriety by a member of staff, in writing to the
Governor, or by petition to the Secretary of State;
iii. in relation to any other matter, by petition to the
Secretary of State or by application to the Board of
Visitors or by application to a visiting officer of the
Secretary of State.
Statements about prison treatment are not treated as
complaints when they are matters of fact e.g. that an inmate
has suffered injury, or that he has been punished for an
offence against prison discipline, or that he is in the
process of making a complaint through the proper channels."
Records at Parkhurst Prison show that this letter to Mr.
Speakman was stopped because it contained allegations of incompetence
on the part of senior management at that prison. His letter to Mr.
Speakman was posted two days later on 11 March 1986 as soon as the
applicant petitioned the Secretary of State in accordance with
Standing Order 5B 34j(ii). The applicant claimed that his letter
contained factual statements and not allegations of staff misconduct.
3. The applicant was then transferred to H.M. Prison Frankland in
April 1986. There restrictions were placed on the number of letters
he could write, whereas he had corresponded without such a restriction
at Parkhurst. He complained to the Home Office about the disparity in
prison censorship practices. The Secretary of State refused to take
any action regarding this complaint (petition reply dated 22 July
1986).
A prisoner's entitlement to letters is set out in paragraph 7
of Standing Order 5B and is applicable to all prisons in England and
Wales:
"(1) All convicted prisoners are entitled under Prison Rule
34 to one statutory letter a week on which postage is paid
at public expense....
(3) .... inmates may send, in addition to the statutory
letter at public expense, at least one letter a week on
which postage is paid from earnings. The Governor should
allow additional letters paid from earnings so far as is
practicable, taking into account the need to examine and
read correspondence and the staff resources available.
Inmates are generally allowed to receive as many letters
as they are allowed to send."
The number of letters allowed varies according to the
establishment, and is at the discretion of the prison Governor. Over
12 million incoming and outgoing letters are handled by the prison
authorities of England and Wales annually. At Frankland Prison a
prisoner's allowance is normally three per week, over and above the
weekly statutory letter at public expense, although more may be
permitted in exceptional cases. During the period covered by this
application, namely from 7 March 1986 until 1 October 1987, the
applicant wrote over 600 letters which were sent out, an average of
just over 8 per week. Some weeks he sent out over 30 letters.
4. On 22 July 1986 a letter of complaint to the applicant's
solicitor was stopped for failing to put the complaint before the
Governor, even though the applicant claimed to have done so. He
petitioned the Home Office about the stopping of the letter. The
Secretary of State rejected the complaint on 15 December 1986 on the
grounds that the letter had been correctly stopped under Rule 37 (A)
of the Prison Rules 1964. On 3 July 1987 the Government informed the
Commission that this letter had in fact been stopped in error and an
apology had now been made to the applicant.
5. The applicant alleged that Circular Instruction 63/66
unjustifiably limits prisoners' purchase and use of cards, e.g. only
24 cards may be sent or handed out at Christmas. The use of circular
instructions denies prisoners necessary information as to censorship
practices.
The Government responded as follows to this allegation:
"The number of Christmas cards prisoners may send is set out
in Standing Order 5B 13, which provides that:
'At Christmas a convicted inmate will be allowed to send an
additional letter to be paid for from his prison earnings;
and the Governor has discretion to allow more....
In addition up to 12 cards with stamps may be bought from
the prison canteen out of prison earnings or private cash.'
In recognition of the special needs of long-term prisoners as
many as 24 cards may be sent by inmates in certain prisons,
including Frankland.
The restriction on the number of cards which may be sent is
necessary to avoid placing too great a burden on the censor's
offices. Inmates are only allowed to send cards bought in
the prison canteen - which may include charity cards - to
avoid the necessity of searching each one.
The applicant was allowed to send Christmas cards in
accordance with the aforementioned guidelines."
6. The applicant alleged that the prison authorities would not
allow him to petition the Home Secretary about his correspondence
complaints at one stage (around October 1986).
The Government responded that without further information
about the allegation it was not possible to investigate it, but, in
principle, the "one petition at a time" rule laid down in Standing
Order 5C does not apply to petitions about correspondence. The
relevant part of this Order provides as follows:
"9. Generally an inmate who has petitioned and not received
a reply should not be allowed to petition on any other matter
unless a month has elapsed since the previous petition was
submitted or the Governor considers that an exception should
be made or except as in Order 5C 10 as below.
10. An inmate sould be allowed to petition about the
following matters whether or not he is awaiting a reply
to a previous petition on any subject:
...
(d) interference with his correspondence."
Despite this guideline the applicant was refused a
correspondence petition to the Home Secretary in March 1987 (see para.
12 below).
7. The applicant alleged that a letter to a fellow inmate at
Frankland Prison had been returned to him although it had been passed
by the prison censor. The censorship was upheld by the Secretary of
State (petition reply 17 December 1986).
The Government responded that on the basis of this information
it is not possible to ascertain the letter in question. However
whilst the applicant was removed from association from other inmates
at his own request, pursuant to Rule 43 of the Prison Rules 1964, as
amended, correspondence with a fellow inmate, Mr. Clarke, was
prohibited.
Standing Order 5B 26 deals with correspondence between
prisoners:
"Correspondence with another convicted inmate requires the
approval of both governors, except where the inmates are
close relatives as described in Standing Order 5B 28 below
or where they were co-defendants at their trial and the
correspondence relates to their conviction or sentence.
Subject to the provisions of Orders 5B 24-30 approval
should be given unless there is reason to believe that such
correspondence will seriously impede the rehabilitation
of either, or where it would be desirable, in the interests
of security or good order and discipline, that the inmates
should be separated from each other, or prevented from
communicating with each other."
In exercise of the discretion conferred by this guideline, the
Governor of Frankland took the view that correspondence between Mr.
Clarke and the applicant was not conducive to the good order and
discipline of the establishment whilst the latter was removed from
association. For this reason, after an exchange of letters between
the two prisoners about a forthcoming adjudication, the Governor
decided that correspondence between them should be stopped until the
applicant returned to normal location.
The applicant denied that he was removed from association at
his own request or that he and Mr. Clarke had corresponded about an
adjudication.
8. On the morning of 4 December 1986 the applicant was not
allowed to receive a visit because he refused to wear ill-fitting
shoes. He claimed to have been assaulted by prison officers,
following his noisy protest about the wasted visit, when he was placed
in a special cell ("the strong box") and stripped of his clothes. He
stated that he was refused writing paper to write to his solicitor
until he was returned to his normal cell the same evening. He further
alleges that the prison doctor failed to examine him fully and that
the next day he was refused a petition of complaint to the Secretary
of State. After an investigation of the alleged assault, the prison
authorities considered that reasonable force had been used in the
circumstances.
9. The applicant claimed that the ventilation in his prison block
at H.M. Prison Frankland was inadequate and caused him headaches.
10. The applicant alleged that a letter to the Commission was
stopped on 1 December 1986.
The Government stated that the letter was not stopped but
merely delayed because the applicant had not written in the correct
format and the letter had been wrongly addressed: On 1 December 1986
he was refused a form to write to the Commission on the grounds that
his complaint had not been dealt with through domestic procedures, but
the Assistant Governor checked the Circular Instruction and then
issued a form some 30 minutes later. On checking the petition the
Assistant Governor noticed that the applicant had addressed it wrongly
and had used both sides of the sheet of paper. Circular Instruction
34/81 instructs Governors to ensure that petitions to the Commission
be written on white line A4 size paper using one side only. Bearing
the Circular Instruction in mind the applicant was asked by the
Assistant Governor to rewrite it. This he did and it was posted on
5 December 1986.
After petitioning the Home Secretary about this incident, the
applicant was advised that the Secretary of State had found that "no
unwarranted interference or delay" in his petition to the "European
Court of Human Rights" had occurred (petition reply dated 17 February
1987).
11. The applicant objected to the stamp placed on his outgoing
correspondence by the prison authorities reminding correspondents to
provide their name and address when writing to prisoners. The
applicant found the practice offensive because it implied that his
correspondents were writing to him anonymously.
The Government responded that, for the protection of the
public and the prevention of further crime, inmates are not allowed to
write to certain types of correspondent. The most important of these
are:
i. minors, where their parents have requested the stopping
of correspondence with the inmate concerned;
ii. other convicted inmates, where the Governor considers
this would seriously impede the rehabilitation of either or
that correspondence would not be in the interests of good
order and discipline;
iii. anyone who has previously served a custodial sentence if
the Governor believes it would impede the rehabilitation of
either; and
iv. persons or organisations whom the Governor believes
present a genuine and serious threat to the security or
good order of that or any other Prison Department
establishment.
In order to enforce these restrictions it is necessary for
correspondents to state their name and address. It is the practice at
Frankland Prison, in cases where an inmate has received an anonymous
letter, to stamp any outgoing letters thought to be going to the same
correspondent with a reminder to give his/her name and address next
time. This is what happened in the present incident.
The applicant denied that anyone wrote to him anonymously.
12. The applicant was then transferred to H.M. Prison Long Lartin.
There certain of his letters were temporarily stopped: a letter dated
12 March 1987 to the Clerk of Public Petitions, House of Commons, and
two letters dated 16 March 1987 addressed respectively to Miss T.
Bailey and the Reverend B. Greenaway. The applicant was not allowed
to petition the Home Secretary immediately about this censorship.
According to the Government these letters were stopped
pursuant to paragraph 7 of Standing Order 5B (para. 3 above). At
Long Lartin Prison this Standing Order concerning letter quotas is
enforced by issuing prisoners with standard prison letter forms.
Where a letter is not written on such official paper, it must be
submitted for posting with a postal authority slip so that the number
of letters sent can be recorded. These slips are available from the
prison censor's office. The three letters were stopped because they
were not accompanied by such slips, which the applicant subsequently
obtained, and the letters were sent in their original form.
The Government also informed the Commission that the applicant
had not been refused a petition to the Home Secretary. However the
applicant submitted with his application an acknowledgement of this
fact in a letter dated 26 May 1987 from the Earl of Caithness,
Minister of State, Home Office, to the Rt Hon. Tony Benn, the
applicant's Member of Parliament, who had raised the matter with the
Home Secretary. In that letter the Minister stated as follows:
"Mr. Chester was indeed refused the issue of a petition
in March and I am sorry to say that the decision to
do so was a mistake. The situation arose from an
administrative misunderstanding which was subsequently
rectified.
Apart from this one incident Mr. Chester's correspondence
is not being unlawfully stopped or interfered with in
any way, indeed he was allowed an increase in his normal
entitlement of letters in order to assist his settling
in at Long Lartin."
13. The applicant was then transferred to H.M. Prison Wakefield.
From there a letter (on or about 8 September 1987) to Mrs. S.
Rutkowski and a letter dated 1 October 1987 to the Rt. Hon. Tony Benn,
MP, were stopped because he had exceeded his letter allowance,
contrary to paragraph 7 of Standing Order 5B. He had already written
four outgoing letters during each of the weeks in question.
COMPLAINTS
The applicant complains of an unjustified interference with
his correspondence, contrary to his right to respect for
correspondence ensured by Article 8 of the Convention. He also
invokes Articles 10, 17 and 18 of the Convention. He relies on
previous submissions to the Commission in his application No. 9488/81,
and alleges that the United Kingdom Government have misled the
Commission with regard to purportedly uniform censorship practices,
and have failed to take effective action to ensure a relaxation of
those practices and a genuine reform.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 March 1986 and registered
on 19 September 1986.
On 13 May 1987, after making a preliminary examination of the
case, the Rapporteur requested the Government, pursuant to Rule 40
para. 2 (a) of the Commission's Rules of Procedure, to provide
information regarding the censorship practices and incidents described
by the applicant. Information was provided by the Government on
3 July 1987, to which the applicant replied on 3 August 1987.
On 3 May 1988 the Commission examined the admissibility of the
application. It decided to give notice of the case to the respondent
Government, pursuant to Rule 42 para. 2 (b) of the Rules of Procedure,
and to invite the parties to submit their observations on the
admissibility and merits of the application. The Government submitted
their observations on 18 July 1988. The applicant was invited to
submit his before 16 September 1988. This time limit was suspended
pending the applicant's legal aid application to the Commission and
the instruction of solicitors. The solicitors appointed by the
applicant informed the Commission on 5 January 1989 that the applicant
had withdrawn his instructions. The applicant was then invited to
submit his observations before 17 March 1989. They were submitted on
20 February 1989.
THE LAW
1. The applicant has complained of an unjustified interference
with his right to respect for correspondence ensured by Article 8
(Art. 8) of the Convention, the relevant part of which provides as
follows:
"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 .... for the prevention of disorder or crime ...."
The applicant has also invoked Articles 10, 17 and 18
(Art. 10, 17, 18) of the Convention with respect to his censorship
complaint. However the Commission does not find these provisions of
the Convention pertinent to the facts of the application.
The applicant contends that the interference with his
correspondence was neither in accordance with the law nor necessary in
a democratic society for the prevention of disorder or crime, within
the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The
Government concede an interference with the applicant's right to
respect for correspondence in certain instances, such as the
stopping or delaying of certain letters in excess of the
applicant's weekly letter allowance, but contend that the
interference was in accordance with the law and necessary for the
prevention of disorder or crime. Insofar as errors were committed by
the prison administration, as with the mistaken censorship of the
applicant's letter of 22 July 1986 to his solicitor, the Government
have offered an apology and conclude that the applicant can no
longer claim to be a victim of a violation of the Convention.
2. The Commission finds that there has been no interference with
the applicant's right to respect for correspondence ensured by Article
8 para. 1 (Art. 8-1) of the Convention in respect of his
unsubstantiated claim that a letter dated 6 March 1986 was stopped, a
temporary inability to petition the Secretary of State about a
correspondence complaint in March 1987 and the stamping of his
outgoing correspondence with a reminder to addressees to put their
names and addresses clearly on their incoming letters. It concludes
that these aspects of the case are manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. However, the Commission also finds that there has been an
interference with the applicant's Article 8 (Art. 8) right as follows:
- insofar as his letters dated 9 March 1986 to Mr. Speakman and
dated 22 July 1986 to his solicitor were respectively delayed and
stopped for failing to observe the simultaneous ventilation rule (the
Commission considers that the applicant may still claim to be a victim
of a violation of Article 8 (Art. 8) in respect of the second letter to his
solicitor, despite the apology he received from the Government a year
later);
- insofar as three of the applicant's letters were delayed and
two stopped for exceeding the weekly letter quota (delayed letters
dated 12 March 1987 to the Clerk of Public Petitions, 16 March 1987 to
Mrs. T. Bailey, 16 March 1987 to the Rev. B. Greenaway, and stopped
letters dated 8 September 1987 to Mrs. S. Rutkowski and 1 October 1987
to the Rt. Hon. Tony Benn, MP);
- generally insofar as a weekly letter quota and a Christmas
card quota were imposed on the applicant; and
- insofar as there was a complete ban on the applicant's
correspondence with a fellow inmate during the applicant's placement
in the segregation unit at H.M. Prison Frankland.
However, the question whether that interference was in
accordance with the law and justified, as being necessary in a
democratic society for the prevention of disorder or crime, within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention, is one
which raises complex issues of law and fact warranting an examination
on the merits.
4. Finally, the applicant has complained of a short delay in the
sending of a letter dated 1 December 1986 to the Commission. The
Commission has examined this complaint in the context of the effective
exercise of the right of individual petition ensured by Article 25
para. 1 (Art. 25-1) of the Convention. However, the Commission finds
that the delay in question did not hinder the applicant's access to
the Commission and that, therefore, there has been no interference
with the effective exercise of his right of petition.
For these reasons, the Commission
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicant's complaints concerning the simultaneous
ventilation rule, mail quotas and correspondence with a
fellow prisoner;
DECLARES INADMISSIBLE the remainder of the application;
DECIDES to take no action in respect of the alleged
interference with the effective exercise of the right
of individual petition.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)