AS TO THE ADMISSIBILITY OF
Application No. 27042/95
by Brian George Edward DAVIS
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 October 1994 by
Brian George Edward DAVIS against the United Kingdom and registered on
18 April 1995 under file No. 27042/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1934. He is detained
in Her Majesty's Prison, Long Lartin and is represented before the
Commission by Mr S. Creighton, a solicitor practising in London.
A. The particular circumstances of the case
The applicant is serving a sentence of life imprisonment imposed
in April 1982. He previously served a sentence of imprisonment from
1962 to 1976. The applicant has undertaken prison work during both
sentences, and has received prison wages, as provided for by Rule 28
of the Prison Rules 1964. Throughout the applicant's detention, until
February 1990, a sum was deducted from the applicant's gross weekly
prison earnings and paid into the "General Fund", which was used to
provide entertainment and other facilities for prisoners. The sum
deducted was between 3 and 7 pence per week and appears on the
applicant's weekly pay slip in the "debits" column. The total sum
deducted from his earnings over the whole period was £67.62. After
February 1990 the policy of deductions from wages to be paid into the
General Fund ceased.
The applicant claims that the deduction of sums paid into the
General Fund was unlawful. On 25 July 1990 the applicant petitioned
the Secretary of State to authorise the return of the deducted money.
On 14 September 1990 the applicant was informed that the Secretary of
State had declined to authorise the reimbursement, on the grounds that
the fund had been "used to provide facilities for all prisoners in the
establishment".
On the 11 December 1990 the applicant applied to the High Court
for leave to seek judicial review of the decision to deduct the money
and of the refusal to return it. On 28 January 1991 this application
was refused without a hearing.
The applicant renewed his application for leave to apply for
judicial review at an oral hearing on 25 April 1991. Leave was again
refused and the applicant's legal aid withdrawn. The applicant renewed
his application for leave to apply for judicial review to the Court of
Appeal. The applicant appeared in person on 27 November 1991, when the
Court of Appeal granted him leave.
The substantive application for judicial review and for damages
and/or restitution of the money deducted from the applicant's wages,
was heard on 17 February 1993 and was dismissed by the High Court. On
this occasion the applicant was represented by counsel. The court held,
inter alia, that under Rule 28(6) of the Prison Rules, the Secretary
of State was empowered to use his discretion to divert a part of
prisoners wages to a fund to be used for the benefit of all prisoners.
The applicant's legal aid was again withdrawn. He appealed to
the Court of Appeal against the substantive decision of the High Court.
On 25 April 1994 the applicant represented himself at a contested oral
hearing at which his appeal was dismissed. The Court of Appeal re-
stated that it was within the Home Secretary's discretion under
Rule 28(6) of the Prison Rules to make deductions from a prisoner's
wages. The Court of Appeal further held that the applicant had no
proprietary right to his gross earnings, rather his proprietary right
was restricted to the net sum he received after deductions. The
applicant applied for leave to appeal to the House of Lords, this was
refused on 7 June 1994.
B. The relevant domestic law
The prison regime in England and Wales is governed by the Prison
Act 1952 ("the 1952 Act") and the Prison Rules 1964 (as amended). The
powers of the executive to detain prisoners, and to regulate the
conditions of their detention derive from the authority of the 1952
Act. Section 47 of the 1952 Act enables the Secretary of State for the
Home Department to make rules by statutory instrument. The Prison
Rules 1964 were introduced pursuant to that section.
Prison Rule 28 governs work and pay. So far as relevant, it
provides:
"28. (1) A convicted prisoner shall be required to do useful
work for not more than ten hours a day, and arrangements
shall be made to allow prisoners to work, where possible,
outside the cells and in association with one another.
...
(6) Prisoners may be paid for their work at rates approved
by the Secretary of State, either generally or in relation
to particular cases."
As a matter of domestic law a prisoner is not recognised as being
in an employer/employee relationship with either a prison governor or
with the Home Office. Accordingly there is no contractual right to
payment of wages.
COMPLAINTS
The applicant alleges a violation of Article 1 Protocol No. 1 of
the Convention. He alleges that his gross prison wages constituted
possessions for the purposes of Article 1 Protocol No. 1 of the
Convention. He complains that the deductions made were not permitted
under the Prison Rules and thus amounted to an unlawful deprivation of
his property in breach of Article 1 Protocol No. 1 of the Convention.
THE LAW
The applicant complains that the compulsory deduction of part of
his gross prison wages amounted to a deprivation of his possessions in
violation of Article 1 of Protocol No. 1 (P1-1) of the Convention.
Article 1 of Protocol No. 1 (P1-1) of the Convention provides as
follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provision shall not, however, in any way impair the
right of a State to enforce such laws as it deems necessary to
control the use of property, in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission recalls that with regard to the concept of
"possessions" under Article 1 Protocol No. 1 (P1-1) of the Convention,
it is initially incumbent on an applicant to establish the precise
nature of the right in domestic law to the alleged "possessions". In
the present case the Court of Appeal held that the applicant did not
have a proprietary right in the wages deducted from his gross pay and
that his proprietary right was merely to the net wages that entered his
account. Nevertheless, the concept of "possessions" is autonomous and
the fact that the domestic law does not acknowledge a particular legal
right, does not conclusively determine that the interest is not a
possession for the purposes of Article 1 Protocol No. 1 (P1-1) of the
Convention (see Eur. Court HR, Tre Traktorer Aktiebolag v. Sweden
judgment of 7 July 1989, Series A no. 159 at para. 53).
The Commission is not, however, required to resolve the issue of
whether the applicant's gross wages amounted to a "possession", as the
application is, in any event, inadmissible for the following reasons.
The domestic courts held that the Secretary of State had a
statutory basis under Prison Rule 28 (6), which enabled him to
authorise compulsory deductions from prisoners' wages. The Commission
notes that these deductions were made in order to supply a fund which
was used to provide entertainment facilities to benefit all prisoners.
The practice of deducting a few pence from each prisoners wage was long
established and applied to all prisoners' wages.
In these circumstances the Commission considers that any
interference with and/or deprivation of property, was in the public
interest, and was subject to the conditions provided for by law.
In these circumstances the Commission concludes that the present
case does not disclose any appearance of a violation of Article 1
Protocol No. 1 (P1-1) of the Convention.
It follows that this application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy