Information Note on the Court’s case-law No. 44
July 2002
Ezeh and Connors v. the United Kingdom - 39665/98 and 40086/98
Judgment 15.7.2002 [Section III]
Article 6
Article 6-3-c
Defence through legal assistance
Refusal to allow convicted prisoners to be legally represented in prison disciplinary proceedings: violation
[This case was referred to the Grand Chamber on 6 November 2002]
Facts: While serving lengthy prison sentences, the applicants were charged with offences under the Prison Rules. The first applicant was charged with threatening to kill a probation officer; the second applicant was charged with assaulting a prison officer. The applicants’ requests to be allowed legal representation for their respective adjudication hearings were refused by the Governor. They were both found guilty and were awarded 40 additional days’ custody and seven additional days’ custody respectively. They were subsequently refused leave to apply for judicial review.
Law: Article 6 § 3 (c) – With regard to the question of the applicability of Article 6 to the proceedings at issue, it was appropriate to apply the criteria laid down in the Engel case (Series A no. 22). Firstly, as far as the classification of the offences in domestic law was concerned, the parties did not dispute that the offences belonged to disciplinary law. Secondly, as far as the nature of the charges was concerned, while the offence of which the first applicant was convicted did not require certain elements of the equivalent criminal offence to be proven, it could not be excluded that the facts surrounding the charge against him could also lend themselves to criminal prosecution. As to the second applicant, it was undisputed that assault was also an offence under criminal law, although the charge against him involved a relatively trivial incident which might not have led to prosecution outside the prison context. Consequently, these factors, whilst not of themselves sufficient to lead to the conclusion that the offences were “criminal”, did give them a certain colouring which did not entirely coincide with that of a purely disciplinary matter. It was therefore necessary to turn to the third criterion, namely the nature and severity of the penalty which the applicants risked incurring. That risk is determined by reference to the maximum potential penalty; while the actual penalty imposed is relevant, it cannot diminish the importance of what was initially at stake. As to the nature of the penalty, while the practice of granting remission created a legitimate expectation of release on a particular date, any “right” to release did not arise until the expiry of any additional days awarded. The legal basis for detention during those days therefore continued to be the original conviction and sentence. Nevertheless, the applicants were detained beyond the date on which they would otherwise have been released and the question arose whether the severity of the punishment was such as to render the guarantees of Article 6 applicable to the disciplinary proceedings. The maximum number of additional days was 42, and the applicants were awarded 40 and seven days respectively. Deprivations of liberty liable to be imposed as a punishment or deterrent, except those which by their nature, duration or manner of execution cannot be appreciably detrimental, belong to the criminal sphere and the presumption was therefore that the charges against the applicants were criminal. As to the nature and manner of execution of the punishment, there was nothing to suggest that the further period of detention would be served other than in a prison and under the same prison regime. As to the duration, the Government’s argument that the “appreciably detrimental” element had to be determined by reference to the length of the sentence already being served could not be accepted, since it would result in Article 6 applying to disciplinary proceedings against one prisoner but not to those against another charged with the same offence. It had not been demonstrated that the duration of the awards could be considered sufficiently unimportant or immaterial to displace the presumed criminal nature of the charges. The deprivations of liberty had therefore to be regarded as appreciably detrimental and the presumption that the charges were criminal had not been rebutted. Article 6 was consequently applicable. It was undisputed that both applicants’ requests for legal representation were refused. Moreover, domestic case-law excluded any right to such representation for adjudications. The applicants were thus denied the right to be legally represented in the proceedings, in violation of Article 6 § 3 (c). It was unnecessary to consider whether the interests of justice required that they be granted free legal assistance.
Conclusion: violation (unanimously).
Article 41 – The Court considered that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage. It made awards in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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