THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39665/98Application no. 40086/98
by Okechukwiw EZEHby Lawrence CONNORS
against the United Kingdomagainst the United Kingdom
The European Court of Human Rights (Third Section), sitting on 30 January 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above applications introduced with the European Commission of Human Rights on 23 and 29 January 1998 and registered on 4 February and 3 March 1998, respectively,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the parties’ oral submissions at the hearing on 30 January 2001,
Having deliberated, decides as follows:
THE FACTS
The applicants are British citizens born in 1967 and 1954, respectively, and both are currently in prison in the United Kingdom. They are represented before the Court by Mr John Dickinson, a solicitor practising in Sheffield. The respondent Government are represented by Ms Ruma Mandal, Agent, Foreign and Commonwealth Office. The facts of the cases, as submitted by the parties, may be summarised as follows.
A. The circumstances of the cases
1. Mr Ezeh
In 1991 the applicant was convicted of rape, possessing an imitation firearm and of attempted murder. He was sentenced to three concurrent terms of imprisonment, the longest term being 12 years. On 14 October 1996 the applicant attended a meeting with his probation officer for the purposes of the preparation of his parole assessment report.
The probation officer alleged that the applicant threatened to kill her if she did not write down what he said. The applicant was charged with an offence contrary to Rule 47(17) of the Prison Rules 1964 (“the Prison Rules”). The applicant argues that his probation officer misunderstood his words and that he did not threaten her but had made a remark about his former life in Nigeria pointing out that when he was living there he had had “the power of life and death”. He claims that he spoke a mixture of English and Nigerian and that she had misunderstood.
An adjudication hearing before the Governor was convened for 15 October 1996. Prior to and during the hearing the applicant requested legal representation. The reasons presented were considered insufficient but the hearing was adjourned to allow him to obtain legal advice. The applicant did contact his solicitor but, due to a misunderstanding as to the timing of the adjudication hearing, they were unable to provide assistance.
The applicant affirmed to the Governor at the resumed hearing on 21 October 1996 that he had had time to speak to his solicitor and the hearing went ahead. Evidence was then heard from the probation officer and the applicant and questions were put by the Governor and the applicant. He was found guilty and was awarded 40 additional days’ custody (pursuant to section 42 of the Criminal Justice Act 1991 – “ the 1991 Act”) together with 14 days’ cellular confinement, 14 days’ exclusion from associated work and 14 days’ forfeiture of privileges. This was the applicant’s 22nd offence against discipline and his 7th offence of threatening to kill or injure a member of the prison staff.
On 22 October 1996 and 11 February 1997 the applicant unsuccessfully petitioned the Secretary of State about the conduct of his adjudication proceedings. In a letter dated 1 May 1997 it was confirmed that the Secretary of State had reviewed the adjudication procedure as a whole.
2. Mr Connors
In January 1998 the applicant was convicted on two counts of rape and of robbery and was sentenced to four concurrent terms of imprisonment, the longest being 18 years.
On 23 March 1997 he was jogging around a track in the prison exercise yard when he collided with a prison officer. The officer alleged that the applicant had run into him deliberately and he was charged with the offence of assault contrary to Rule 47(1) of the Prison Rules.
The adjudication hearing commenced on 24 March 1997 when the applicant requested legal representation. This was refused but the hearing was adjourned to allow him to obtain legal advice. He obtained that advice on 27 March 1997 and was told to request legal representation for the hearing itself. The applicant made this request on 31 March 1997.
The adjudication hearing was reconvened on 11 April 1997. The Governor rejected the application for legal representation. He heard evidence from the relevant prison officer and another prison officer, the applicant and from two prisoners called by the applicant. The applicant was found guilty and was awarded 7 additional days’ custody (pursuant to section 42 of the 1991 Act). Three days cellular confinement was also awarded and he was fined eight pounds sterling. It was his 37th offence against discipline.
3. Judicial Review
On 16 June and 7 July 1997, respectively, the applicants requested leave to apply for judicial review of the Governor’s refusal of legal representation. Mr Ezeh also applied for an extension of time in which to do so. On 1 August 1997 a single judge of the High Court refused leave to both applicants. He observed that there was no right to legal representation in adjudication hearings and that the Governor’s exercise of his discretion not to allow such representation was not irrational. In Mr Ezeh’s case he added that there was therefore no good reason for extending time.
On 10 August 1997 the applicants’ counsel advised that a renewed leave application had no realistic prospect of success, given the views expressed by the judge of the High Court.
B. Relevant domestic law and practice
1. The charges
Section 47(17) of the Prison Rules 1964 (“the Prison Rules”) provides that a prisoner is guilty of an offence against discipline if he uses threatening, abusive or insulting words or behaviour.
Section 16 of the Criminal Justice Act 1991 (“the 1991 Act") provides that a person who, without lawful excuse, makes to another a threat to kill that other or a third person, intending that the other would fear it would be carried out, shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding 10 years.
Section 4 of the Public Order Act 1986 (“the 1986 Act”) is entitled “Fear or provocation of violence” and provides:
(1) A person is guilty of an offence if he –
(a) uses towards another person threatening, abusive or insulting words or behaviour; or
(b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,
with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked. ...
(4) A person guilty of an offence under this section is liable … to imprisonment for a term not exceeding 6 months or a fine ... or both.”
Section 5 of the 1986 Act is entitled “Harassment, alarm or distress” and provides:
“(1) A person is guilty of an offence if he –
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour; or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.”
A prisoner is guilty of an offence against discipline if he commits assault (section 47(1) of the Prison Rules). Both section 47 of the Offences Against the Person Act 1861 and section 39 of the Criminal Justice Act 1988 make provision for the criminal offence of common assault.
Section 48(1) of the Prison Rules provides that a charge of an offence against discipline shall be laid, save in exceptional circumstances, within 48 hours of the offence and, in general, inquired into by the Governor the day after it is laid. Since 1992 all prison disciplinary matters are heard by the Governor (Rule 48(3) of the Prison Rules).
2. Remission of sentence
Prior to the 1991 Act, the practice of the authorities was, subject to disciplinary matters, to grant remission of sentence and to release prisoners unconditionally (see Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, §§ 26-29).
Section 33(2) of the 1991 Act provides that, as soon as a long-term prisoner (a term of imprisonment of four years or more) has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release that person. However, the prisoner is released on licence, which means that he or she is released into the community to serve out the remainder of his or her sentence subject to the licence conditions imposed. A breach of those conditions can mean the prisoner’s recall to prison to serve the remainder of the original sentence.
The case of R v. Governor of Brockhill Prison, ex parte Evans (No. 2) ([1999] 2 WLR 103) concerned a prisoner’s detention beyond the statutory release date because of an erroneous calculation of the release date. The Court of Appeal found detention past the statutory date to be unlawful and awarded damages for false imprisonment. The Court of Appeal pointed out:
“The discretionary aspects of earlier arrangements for remission and parole were altered by the Criminal Justice Act 1991. As a “short-term” prisoner within section 33(5) of the <1991 Act>, subject to the award of any additional days in custody for disciplinary offences, the appellant was entitled to be released on licence as soon as she had served one half of the sentence imposed by the court. Therefore authorities such as Morris and Winter [1930] 1 KB 243, based on the principle that there was no entitlement to remission, cease to be relevant ...
The order of the court justifies the detention. Nevertheless, the prisoner is entitled to be released immediately the sentence has been completed. The method of calculating the date of release depends on statutory provisions which must be applied correctly, that is, correctly in law.”
The House of Lords in the same case ([2000] 3 WLR 843) later confirmed the finding of false imprisonment and the award of damages.
3. Awards of additional days
Section 42 of the 1991 Act provides as follows:
“(1) Prison rules, that is to say, rules made under section 47 of the 1952 Act, may include provision for the award of additional days –
(a) to short-term or long-term prisoners; or
(b) conditionally on their subsequently becoming such prisoners, to persons on remand.
who (in either case) are guilty of disciplinary offences.
(2) Where additional days are awarded to a short-term or long-term prisoner, or to a person on remand who subsequently becomes such a prisoner, and are not remitted in accordance with prison rules –
(a) any period which he must serve before becoming entitled to or eligible for release under this Part; and
(b) any period for which a licence granted to him under this Part remains in force,
shall be extended by the aggregate of those additional days.”
For each disciplinary offence, the maximum award of additional days is 42, the maximum cellular confinement is 14 days and the maximum forfeiture of privileges is 21 days (Rule 50(1) of the Prison Rules).
Lord Woolf, in his report on Prison Disturbances (April 1990), recommended a maximum award of 28 additional days and more recourse to the alternative punishments of loss of facilities and privileges.
In response to the coming into force of the Human Rights Act 1998, Prison Service Instructions issued on 2 October 2000 to provide guidance on the implications of that Act for the conduct of adjudications and the imposition of punishments, particularly the punishment of additional days.
The Instructions noted that, while in principle Article 6 would not apply to prison disciplinary proceedings, there was a risk that it could in certain circumstances. The Instructions emphasised the importance of proportionate (to the aim of good order and discipline) punishments and of sufficient consideration being given to alternative punishments to additional days. It explained that “additional days” constituted the heaviest punishment available to adjudicators and should be used in a targeted fashion, that adjudicators should be particularly careful before imposing a large number of additional days and that it should be extremely rare for punishments of more than 28 additional days to be imposed. The Instructions indicated that in 1998 only 3% of awards of additional days’ detention exceeded 28 days. In more serious cases, adjudicators were to ensure that they had fully considered the alternative of referring the matter to the police and were to use the disciplinary procedure only where it was not possible to refer the case to the police or if there were good reasons why a disciplinary punishment was more appropriate.
4. Legal representation at adjudications
Section 49(2) of the Prison Act 1952 provides:
“Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case.”
The above provision is implemented by Rule 49(2) of the Prison Rules:
“At an inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case.”
The courts have interpreted Rule 49(2) as conferring a power on the Governor to grant, or not, to a prisoner legal representation at an adjudication hearing. In R v. the Home Secretary ex parte Tarrant and others ([1985] 1 QB 251), the High Court pointed out that there is no right to legal representation for prison adjudications and that its grant in a particular case should be determined by reference to certain factors. Those factors were stated to include the seriousness of the charge and of the potential penalty; whether any points of law are likely to arise; the capacity of the particular prisoner to present his own case; procedural difficulties; the need of the prison authorities for reasonable speed in making their adjudications, and the need for fairness as between prisoners and as between prisoners and prison officers.
The House of Lords endorsed the factors outlined in the above-cited Tarrant judgment in R v. Board of Visitors of HM Prison The Maze, ex parte Hone and McCartan ([1988] 1 AC 379). Lord Bridge, however, found it difficult to imagine that “the rules of natural justice would ever require legal representation before the Governor”. Lord Goff considered that:
“... it is easy to envisage circumstances in which the rules of natural justice do not call for representation, even though the disciplinary charge relates to a matter which constitutes in law a crime, as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to a wholly unnecessary waste of time and money, contrary to the public interest. Indeed to hold otherwise would not only cause injustice to prisoners: it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so, for the punishments liable to be imposed do not depend on any such distinction.”
5. Petitions to the Secretary of State
Rule 56 of the Prison Rules is entitled “Remission and mitigation of punishments and quashing of findings of guilt” and reads as follows:
“1. The Secretary of State may quash any finding of guilt and may remit any punishment or mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe.
2. Subject to any directions given by the Secretary of State, the Governor may remit or mitigate any punishment imposed by a Governor or the Board of Visitors.”
In Leech v. Deputy Governor of Parkhurst Prison ([1988] 1 AC 533), Lord Bridge of the House of Lords agreed that the misconstruction of a prison rule by a Governor could be considered on judicial review by the courts after the Home Secretary’s decision on the point. However, once the matter related, as it generally did, to a complaint about the conduct of the proceedings before the Governor, Lord Bridge noted as follows:
“ ... I do not see how a petition to the Secretary of State can possibly provide an adequate remedy. Save perhaps in a case that is taken up by a member of Parliament, the matter will come before a civil servant in the Home Office who will consider on the one hand the prisoner’s petition, on the other hand the relevant records and reports supplied by the Governor. If those disclose an issue of fact, I hope it is not unduly cynical to suppose that in the majority of cases the civil servant is likely simply to accept the Governor’s account. But even if he wishes to resolve any issue of fact in a judicial way, he probably lacks the experience and certainly lacks the procedural machinery, including the power to require evidence on oath, enabling him to do so. If the court’s jurisdiction is limited to considering an application for judicial review of the Secretary of State’s findings as a barrier to prevent the use of its own procedures and powers to ascertain the facts on which the validity of the Governor’s adjudication essentially depends. This cannot be an adequate substitute for judicial review of the award itself ...
If a prisoner has a genuine grievance arising from disciplinary proceedings unfairly conducted, his right to petition a faceless authority in Whitehall will not be of much comfort to him.”
6. Statistics
According to information provided by the Government, the numbers of adjudications which took place between 1996 and 1998, those in which the charges were considered proven and those where additional days were awarded. The approximate figures are set out below:
Total Adjudications
Charges proved
Addit. days awarded
1996
129,430
115,688
77,325
1997
121,687
108,234
74,062
1998
126,298
111,464
75,050
Between 1994 and 1998 there were about 250 requests for legal or other representation, of which approximately two-thirds were granted.
COMPLAINTS
The applicants complain under Article 6 § 3(c) of the Convention that they were denied the opportunity to be legally represented at the adjudication hearings held on 21 October 1996 and on 11 April 1997, respectively.
THE LAW
The applicants complain under Article 6 § 3(c) of the Convention about the lack of legal representation and legal aid for their adjudication hearings. They submit that there has been a violation of the second limb of Article 6 § 3(c) because they were not allowed to be legally represented under any circumstances and that limb of Article 6 § 3(c) is unqualified in its protection. Alternatively, they complain under the third limb of Article 6 § 3(c) that, where a deprivation of liberty is at stake, the interests of justice in principle require free legal representation both before and during the hearing on all questions of guilt or innocence (Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions, 1996-III, §§ 61-64). Article 6 § 3(c) reads as follows:
“3. Everyone charged with a criminal offence has the following minimum rights:
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
A. Article 35 § 1 of the Convention and Mr Connors
The Government maintain that Mr Connors has not exhausted domestic remedies. They argue that, as well as the judicial review proceedings, he should also have petitioned the Secretary of State in respect of the refusal by the Governor of legal representation, and that he could have completed that petition either before or after the judicial review proceedings, the two remedies being cumulative. They submit that such a complaint would have fallen squarely within the category of issues which may be considered by the Secretary of State under Rule 56(1) of the Prison Rules, in that the Secretary of State could have quashed a determination of the Governor if he considered that fairness required legal representation. It is qualitatively different from the remedy of judicial review since the Secretary of State is not confined to considering the matter according to the defined grounds for judicial review under English law, but his mandate would be wider extending to the merits of any unfairness allegation in a particular case.
Mr Connors considers that a petition to the Secretary of State would not have been an effective remedy as he was effectively challenging the very scheme which operated under the authority of the Secretary of State (Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, § 116). He is also challenging the refusal of legal representation in accordance with the criteria set down in the above-cited Hone and McCartan case. Alternatively, he considers that he had a choice of remedies, that the Convention entitled him to choose to apply for judicial review only, and that the pursuit of that action as far as the single judge of the High Court was sufficient to comply with the requirements of Article 35 § 1 of the Convention.
The Court recalls that, pursuant to Article 35 § 1 of the Convention, it is only competent to consider complaints after all effective domestic remedies have been exhausted, according to the generally recognised rules of international law, and when the application has been introduced within six months of the final domestic decision.
Even assuming, as the Government argue, that the applicant could have petitioned the Secretary of State and then applied for leave to take judicial review proceedings or vice versa as suggested by the Government, the Court recalls that the applicant was entitled to choose which remedy to exhaust first (Airey v. Ireland judgment of 9 October 1979, Series A no. 32, § 23, and no. 24196/94, Commission decision of. 22 January 1996, Decisions and Reports (DR) 84-A, at p. 81). The Court considers that the applicant quite reasonably chose to apply first for judicial review of the Governor’s refusal of legal representation.
The Government do not contend that the applicant should have renewed his leave application but rather that he should have subsequently petitioned the Secretary of State. The Court recalls that it is incumbent on the State invoking an alleged failure to exhaust domestic remedies, not only to show that the remedy was accessible and capable of providing redress in respect of the applicant’s complaints, but that it offered reasonable prospects of success (see the Selmouni v. France judgment, [GC], no. 25803/94, §§ 75-76, ECHR 1999-V). In this latter respect, the Court notes the factors by reference to which the need for legal representation for prison disciplinary proceedings will be assessed (see the above-cited Tarrant and Hone and McCartan cases), the reasons outlined by the High Court for the refusal of judicial review in both cases, and Counsel’s opinion on the chances of success of a renewed leave application. It is further noted that the Government have adduced no evidence as to how often, if ever, the Secretary of State has, under section 56(1) of the Prison Rules, disagreed with the decision of the Governor or of the High Court on the question of the need for legal representation during prison adjudications.
In such circumstances, the Court finds that the petition to the Secretary of State has not been shown to be an effective remedy for the lack of legal representation at an adjudication. Mr Connors’ complaints are not, therefore, inadmissible on grounds of a failure to exhaust domestic remedies.
B. Article 6 of the Convention
1. Applicability of Article 6 of the Convention
The parties are in dispute as to the applicability of Article 6 to the complaints. The applicants contend that the charges against them can be considered “criminal” for the purposes of Article 6 and the Government consider that they are disciplinary. The Government emphasise the necessity of prison disciplinary regimes independent of the criminal justice system, and they consider that they have placed, in a manner consistent with Article 6, the dividing line between disciplinary and criminal charges.
However, it is not disputed that the applicability of Article 6 falls to be assessed on the basis of the three criteria outlined in the Engel judgment (Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, §§ 82 and 83):
“..., it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however, provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import. ...
However, supervision by the Court does not stop there. Such supervision would generally prove illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the “criminal” sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so ...
It is on the basis of all these criteria that the Court will ascertain whether some or all of the applicants were the subject of a “criminal charge” within the meaning of Article 6 § 1 of the Convention”.
The applicants add that each of the three criteria should be considered independently: that the first criterion is “of relative weight and serves only as a starting point” (the above-cited Benham judgment, § 56, and Ozturk v. Germany judgment of 21 February 1984, Series A no. 73, § 52); that the second criterion is “of greater import”, and that the third criterion will usually be decisive if the penalty concerned involves a deprivation of liberty (the above-cited Engel judgment, § 82).
The applicants also point out that the second and third criteria are alternative and not necessarily cumulative (Lauko v. Slovakia judgment of 2 September 1998, Reports 1998-VI, no. 88, § 57), although a cumulative approach may be adopted where a separate analysis of each criterion does not allow a conclusion as to the existence of a criminal charge (Bendenoun v. France judgment of 24 February 1994, Series A no. 284, § 47).
(a) the domestic classification
It is not disputed that the offences is question were prison disciplinary offences in domestic law.
(b) the nature of the charge
The Government argue, in the first place, that certain acts of misconduct are clearly no more than questions of internal prison discipline, concerning as they do the security and good order of a prison (the above-cited Campbell and Fell judgment, § 71).
In any event, the Government maintain that the charge against Mr Ezeh did not correspond to any offence in the ordinary criminal law, but rather was a similar offence adapted as necessary to the prison context. The differences between Rule 47(17) and section 4 of the 1986 Act, and the necessarily simpler nature of the offence under that Rule, underline the clear prison disciplinary nature of the offence under Rule 47(17). The first difference is that section 4 of the 1986 Act requires an intention that the subject of the threats should be made to fear that immediate violence would be used. This is not a necessary element of the offence under Rule 47(17) of the Prison Rules: a threat of violence is considered, in itself, inherently disruptive and contrary to good discipline and should therefore be controlled even though the restraints of prison mean that it may be, in fact, impossible for the prisoner to carry out the threat. Secondly, it is not necessary to establish against whom the threatening behaviour was aimed to prove an offence under Rule 47(17), whereas section 4 of the 1986 Act requires proof that a particular person feared violence. Thirdly, the offence under section 4 of the 1986 Act cannot be committed where the accused and the alleged victim are within a dwelling, whereas Rule 47(17) specifically foresees offences taking place within a prison or even within a cell. Finally, it is not clear whether all of the elements of the criminal offence under section 4 of the 1986 Act were present in Mr Ezeh’s case.
The Government make similar submissions regarding the difference between Rule 47(17) and section 5 of the 1986 Act: section 5 of the 1986 Act requires a further element that the threatening words were used within sight or hearing of a person “likely to be caused harassment, alarm or distress”, whereas this is not a requirement of Rule 47(17); an accused under section 5 can raise the defence that he had no reason to believe that the person would be caused harassment, alarm or distress, whereas this is no defence to the offence in Rule 47(17) and, finally, the offence under section 5 cannot be committed when the accused and alleged victim are within a “dwelling”, whereas this is precisely the situation foreseen by Rule 47(17) of the Prison Rules.
The Government accept that the charge against Mr Connors (assault) is concurrently a criminal offence. However, they maintain that an assessment has also to be made as to the category into which the charge in question more naturally falls. Relying on the Court’s comments in the Campbell and Fell judgment (§ 71) and those of the Commission in its decision in the McFeely v. the United Kingdom case (no. 8317/78, Commission decision of 15 May 1980, DR 20, p. 95, § 99), they submit that a minor assault on a prison officer by a prisoner of the kind in question in this case is more in the nature of internal prison discipline. Such a relatively trivial assault may not have led to criminal proceedings, but the maintenance of discipline would warrant a charge in a prison context.
The applicants maintain that the charges are plainly criminal in nature. In the first place, the rules contravened were of a generally applicable character, not confined by their nature to a prison context or to the applicants’ status as prisoners. Secondly, each disciplinary offence had, contrary to the Government’s submissions, a criminal equivalent. The criminal equivalent of the offence with which Mr Ezeh was charged is to be found in sections 4 and 5 of the 1986 Act, and assault, of which Mr Connors was found guilty, is concurrently a criminal and disciplinary offence. Indeed this dual classification of the relevant offences is, according to the applicants, a factor which leans in favour of treating the offences as criminal (the above-cited Engel judgment, § 81, and the above-cited Campbell and Fell judgment, § 71). Thirdly, the adjudications were adversarial in nature. Fourthly, the burden and standard of proof applied was the criminal standard of proof beyond reasonable doubt. Fifthly, the penalty imposed was both punitive and deterrent in its purpose.
c) severity of the penalty
The parties disagree on the effect of the 1991 Act on a prisoner’s entitlement to remission and, therefore, on the severity of the penalty of additional days.
The Government point out that, as the Court in its Campbell and Fell judgment (at § 72) accepted, there was no useful distinction to be made, for Convention purposes, between remission as a privilege (the pre-1991 Act position) and remission as of right (the post-1991 Act position). Prior to the 1991 Act a prisoner had a legitimate expectation of remission in line with a declared practice and standardised rules which were invariably applied, and the 1991 Act simply put that practice into primary legislation. The 1991 Act, therefore, rendered the system more transparent but did not change it in substance.
Other related matters also remained, according to the Government, unchanged by the 1991 Act. The Governor’s power to award loss of remission prior to the 1991 Act is the same in substance as the power to award “additional days” pursuant to that Act. In addition, release was and is subject to good behaviour both prior to and after the 1991 Act. Moreover, the legal basis for the additional days’ detention imposed by the Governor was and remains the original sentence of the criminal court since the additional days’ detention could not and cannot extend beyond the original sentence imposed. Furthermore, the range and nature of the disciplinary offences are also substantially the same, as are the prison rules which applied loss of remission, both before and after the 1991 Act. Finally, neither the pre-1991 Act loss of remission nor the additional days awarded under the 1991 Act constitute a criminal sanction recorded on an individual’s criminal record.
Since, according to the Government, there is no difference in substance between the position prior to and after the 1991 Act, they rely on Convention jurisprudence which considered the application of Article 6 to pre-1991 Act adjudication hearings. Accordingly, they argue that the 42 day limit is below the periods of loss of remission accepted by the Commission as disciplinary in, inter alia, the above-cited McFeely case and in the Kiss v. the United Kingdom case (no. 6224/73, Commission decision of 16 December 1976, DR 7, p. 55), and of a completely different order of magnitude to the loss of remission found by the Court to be criminal in the above-cited Campbell and Fell case.
In addition, even if a penalty of deprivation of liberty suggests the application of Article 6, this is not the case if the penalty imposed is not “appreciably detrimental”. In this respect, the sentences actually imposed were relatively short (particularly in Mr Connors’ case) when compared to the long sentences they were serving. This “appreciably detrimental” assessment does not disregard the importance of the right to liberty, because it is an assessment which is made in the context of an award of additional days in respect of the problematic manner in which the applicants served sentences already lawfully imposed, and not in the context of an unrelated criminal matter. The “appreciably detrimental” criteria does not lead to arbitrary results since it is based on an assessment of the implications of additional days in each person’s case.
The Government add, as regards Mr Connors, that the maximum potential sentence was not the primary consideration in his case as he never risked the maximum penalty of 42 days given the minor circumstances of the incident. Indeed the Court in the above-cited Campbell and Fell case (at § 73) were also influenced by the sentences actually imposed.
Finally, the Government underline that the main and legitimate purpose of the remission system is to provide strong incentives to prisoners to behave (an objective enhanced by the transparency introduced by the 1991 Act), and to allow prison disciplinary matters to be dealt with expeditiously.
The applicants submit that, prior to the 1991 Act, early release of prisoners was a discretionary system of remission by the Executive for good conduct, and the imposition of a disciplinary penalty by a Governor constituted a loss of a privilege or of a legitimate expectation of remission.
They maintain that the 1991 Act introduced a legally enforceable right to release, and that this fundamental change is demonstrated by a number of additional and consequent changes. Pursuant to the 1991 Act, the Governor’s power to reduce remission is expressed as a power to impose “additional days” deprivation of liberty and the maximum award of such detention was increased from 28 days to 42 days. In addition, the sentencing court must now take account of the actual term which the prisoner will serve under the 1991 Act when fixing the initial sentence, because the release date is enshrined in statute (Practice Statement (Crime: Sentencing) WLR 1992, at § 9), whereas previously the sentencing court simply fixed the sentence appropriate to the offence since any remission was, in principle, a matter of executive discretion. Moreover, prior to the 1991 Act, additional detention consequent on an erroneous calculation of remission would not have given rise to a claim in compensation whereas, since the 1991 Act, remission is considered a right so that the same error would give rise to an award of compensation under the tort of false imprisonment.
Indeed, the applicants point out that the Court in its Campbell and Fell judgment expressly recognised the difference between a privilege or legitimate expectation, on the one hand, and the legally enforceable right to release and the power to detain someone already at liberty, on the other. It concluded that, given the legitimate expectation of release and the amount of remission lost in that case, the severity of that loss was sufficient to ensure the identification of the relevant proceedings as criminal. However, the applicants submit that that does not mean that a similarly long period of additional days under the 1991 Act is required prior to classification of the relevant proceedings as criminal.
Accordingly, the applicants maintain that the right to remission introduced under the 1991 Act means that the decision of a Governor in the course of an adjudication to impose additional days’ imprisonment constitutes a fresh and independent deprivation of liberty, and alters the legal basis for a prisoner’s detention.
In such circumstances, the starting point in terms of the consideration of the applicability of Article 6 is the presumption, outlined by the Court in the above-cited Engel case (at § 82), that loss of liberty imposed as punishment for an offence belongs in general to the criminal sphere, unless by its nature, duration or manner of execution it is not appreciably detrimental. The applicants take issue with the Government’s suggestion that the periods imposed were not “appreciably detrimental” in view of the long prison sentences already being served. They feel this fails to attach sufficient importance to the right to personal liberty, which right should not lose importance simply because the individual has just served a period in custody on an unrelated matter. They argue that the logic of the Government’s argument implies that an individual could, for example, progressively lose the protection of the criminal guarantees of Article 6. It could also lead to a discriminatory treatment of prisoners in a disciplinary context, the prisoners’ criminal guarantees depending on their past records.
The applicants also underline that a conclusion that certain charges are not criminal excludes the application not only of Article 6 § 1, but also of Articles 6 § 2 and 7 of the Convention - the presumption of innocence and the prohibition against retrospective offences.
2. Compliance with Article 6 § 3(c)
As to the second limb of Article 6 § 3(c), the Government submit that the applicants had the opportunity to consult legal representatives prior to the adjudication, that they had never asked or indicated that they could have paid for lawyers themselves (so their request for legal representation was reasonably interpreted as a request for free legal aid), that they never indicated at their adjudications that they felt unable to defend themselves, and that they proceeded to defend themselves without any difficulty.
As to the third limb of Article 6 § 3(c), the Government accept that the applicants did not have the means to pay for their own legal representation, but maintain that the denial of free legal aid was not contrary to the interests of justice. They submit that the facts of the cases were straightforward; that no points of law arose; that the applicants were capable of defending themselves (due to their long experience with adjudications), and that they were free to obtain legal advice prior to their adjudications. As to Mr Ezeh, his written submissions indicated a good command of English, he did not request an interpreter or complain under Article 6 § 3(e), and at the resumed hearing Mr Ezeh indicated that he had had time to speak to his lawyer and was ready to proceed. The charge against Mr Connors was relatively minor. Relying on paragraph 69 of the Campbell and Fell judgment, the Government consider that the need for a prompt response to misconduct by prisoners and the fact that accused persons are already subject to sentence (and not at liberty) are relevant factors to be taken into account when examining the requirements of the interests of justice in the context of legal representation for prison adjudications.
The applicants emphasise that their first complaint is under the second limb of Article 6 § 3(c) and is about the prohibition by the Governor of any legal representation, regardless of whether the applicants could have paid for such representation themselves or not (and they submit that they could have obtained legal representation free of charge). They consider that the right to legal representation under the second limb of Article 6 § 3(c) is unqualified (by an “interests of justice” criterion or otherwise) and, accordingly, the refusal of legal representation for their hearings violated Article 6 § 3(c).
Alternatively, they complain under the third limb of Article 6 § (c) that the interests of justice required a grant of free legal aid, the applicants arguing that the guidelines approved in the above-cited Hone and McCartan case do not meet the Convention “interests of justice” test.
In the first place, the above-cited Benham case indicates (at § 61) that once an individual risks a loss of liberty, the interests of justice in principle call for legal representation (see also the Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205, § 33). Secondly, they dispute that substantial disciplinary records meant that they could better represent themselves in the adjudication hearings: the worse their disciplinary records, the less likely it was that their word or their submissions on mitigation of sentence would be accepted, and the more inappropriate it was for them to be required, in proceedings concerning their credibility, to act as their own advocates. Thirdly, English was not Mr Ezeh’s first language; he had an imperfect command of that language; the charge related to words he allegedly spoke to the probation officer and his defence was that he had been misunderstood. Fourthly, the fact that they were allowed to take legal advice prior to the adjudication hearings is difficult to reconcile with the Government’s stance that they did not require legal assistance. Finally, the Convention requires legal representation during the hearing itself (the Benham judgment, §§ 63-64).
The Court considers that the complaints of the applicants raise complex and serious issues under Article 6 § 3(c) of the Convention which require determination on the merits. It follows that they cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaints inadmissible has been established.
For these reasons, the Court, unanimously,
Declares the applications admissible, without prejudging the merits.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy