EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 21451/93
Harold Gerrard
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 21 May 1997)
TABLE OF CONTENTS
page
I.INTRODUCTION
(paras. 1-20)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-15)1
C.The present Report
(paras. 16-20)2
II.ESTABLISHMENT OF THE FACTS
(paras. 21-37)3
A.Particular circumstances of the case
(paras. 21-30)3
B.Relevant domestic law and practice
(paras. 31-37)4
III.OPINION OF THE COMMISSION
(paras. 38-52)6
A.Complaints declared admissible
(para. 38)6
B.Point at issue
(para. 39)6
C. As regards Article 8 of the Convention
(paras. 40-51)6
CONCLUSION
(para. 52)8
APPENDIX:DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION9
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicant is a British citizen born in 1936 and currently serving a
sentence of imprisonment in HMP Blundeston. He is represented by Ms. Nicola
Rogers, a solicitor at the AIRE Centre in London.
3.The application is directed against the United Kingdom. The respondent
Government are represented by Mr. Ian Christie from the Foreign and Commonwealth
Office.
4.The case concerns the complaints of the applicant of the opening of his
letters with his solicitor and the Commission. He invokes Article 8 of the
Convention.
B.The proceedings
5.The application was introduced on 15 April 1992 and registered on 1 March
1993.
6.On 30 June 1993, the Commission decided to communicate the application to
the Government inviting them to submit observations on the admissibility and
merits.
7.On 5 November 1993, the Government submitted their observations and on 22
November 1993, the applicant submitted his observations in reply.
8.On 11 March 1994, the AIRE Centre wrote to the Commission enclosing a
letter of authority from the applicant and requesting an extension in the time-
limit for submitting further observations in reply to the Government. After two
further extensions of time, the applicant's representatives submitted
observations on 9 September 1994. Further information was submitted on behalf of
the applicant on 11 November 1994.
9.On 11 January 1995, the Commission requested the Government to submit
further written observations on the admissibility and merits of the applicant's
complaints.
10.The Government's further observations were submitted on 10 March 1995 and
the applicant's further reply was sent on 25 April 1995.
11.On 18 October 1995, the Commission declared the application admissible.
12.The parties were then invited to submit any additional observations on the
merits of the application.
13.On 2 September and 6 December 1996, the applicant made further
submissions.
14.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of
the parties with a view to securing a friendly settlement of the case.
15. In the light of the parties' reactions, the Commission now finds that
there is no basis on which a friendly settlement can be effected.
C.The present Report
16.The present Report has been drawn up by the Commission in pursuance of
Article 31 of the Convention and after deliberations and votes, the following
members being present:
Mrs.J. LIDDY, President
MM.E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENI?
C. BÎRSAN
M. VILA AMIGÓ
Mrs.M. HION
Mr.R. NICOLINI
17.The text of the Report was adopted by the Commission on 21 May 1997 and is
now transmitted to the Committee of Ministers in accordance with Article 31
para. 2 of the Convention.
18.The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1)to establish the facts, and
2)to state an opinion as to whether the facts found disclose a breach
by the State concerned of its obligations under the Convention.
19.The Commission's decisions on the admissibility of the application is
annexed.
20.The full text of the parties' submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.Particular circumstances of the case
21.The applicant was convicted of murder and sentenced to life imprisonment
in 1986.
22.Since the applicant arrived at HM Prison Blundeston in or about 1987, he
states that his correspondence from his solicitor has been persistently opened
without him being present. He lists six particular letters - 21 February 1992,
29 February 1992, 10 March 1992, 6 May 1992, 9 May 1992 and 1 December 1992. He
states that a letter dated 11 February 1993 was opened in his presence but that
the prison officer proceeded to read it.
23.By response dated 25 February 1992 to the applicant's complaint about
opening of letters, the Governor acknowledged that a solicitor's letter, which
was marked in accordance with prison procedure (see Relevant domestic law and
practice below), had been opened in the applicant's absence contrary to the
rules but that the officer concerned had personally acknowledged his oversight.
24.The applicant complained further about the opening of the first three
letters above in a complaint form dated 10 March 1992. He stated that it had
been alleged that all three had been opened in error but that he considered that
opening was happening too often for it to be an accident. He was informed in
reply by the Area Manager that the appropriate handling procedures were in
operation.
25. The applicant also complained about the letter of 6 May 1992. In a reply
dated 15 May 1992 the Area Manager stated that since it did not appear that the
applicant was party to or defendant in civil or criminal proceedings his
correspondence from his solicitor was subject to the normal opening procedures.
His appeal against this received the response dated 1 June 1992 that the
implications of the Campbell judgment were still under consideration by the
Government but that further steps had been taken to prevent errors in the
handling of mail to which Standing Order 5B 32(3) applied. The applicant's
complaint concerning the opening of the letter dated 1 December 1992 met the
reply that the relevant standing order was applied.
26.The applicant states that letters dated 12 May 1992 and 14 January 1993
from the Commission were given to him pre-opened. The applicant complained about
the latter to the Prison Governor and was informed by reply dated 20 January
1993 that correspondence from the Commission could still be opened in a
prisoner's absence under the applicable standing order.
27.The applicant wished to challenge the prison authorities' interference
with his correspondence as being in breach of the prison rules and the European
Convention of Human Rights. Legal aid for the application to the courts was
refused by the Legal Aid Area Office on 8 December 1992 on the ground that he
had not shown that he had reasonable grounds for taking the proceedings and that
it was considered that he had no reasonable prospects of success in the
proceedings. The applicant's appeal to the Area Committee was rejected on 19
February 1993 on the same grounds.
28.On 1 January 1994, the Prison Rules with regard to the opening of
correspondence with solicitors and the Commission were amended (see para. 36
below).
29.Since that date, the applicant states that four letters to him from his
solicitors dated 11 February, 2 March, 5 March and 30 March 1994 have been
opened by the prison authorities despite the letters being clearly marked.
30.In respect of the four letters mentioned above, the Government state that
the envelope of the first of the above letters was opened by the prison officer
in error when it was face down and when it was turned and the Rule 37 marking
noted, the contents were not taken out and an apology made orally to the
applicant. The envelope for the letter of 30 March 1994 was also opened in error
but the contents not removed and an apology made to the applicant. No formal
complaint was received by the prison authorities in respect of any of these
incidents.
B.Relevant domestic law and practice
Position prior to 1 January 1994
31.Section 47(1) of the Prison Act 1952 reads as follows:
"The Secretary of State may 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."
32.Rules 33(2) and (3) of the Prison (Amendment) Rules 1989 read as follows:
(2) "Except as provided by statute or these Rules,a prisoner shall not be
permitted to communicate with any outside person, or that person with him,
without the leave of the Secretary of State.
(3) Except as provided by these Rules, every letter or communication to or
from a prisoner may be read or examined by the governor or an officer deputed by
him, and the governor may, at his discretion, stop any letter or communication
on the ground that its contents are objectionable or that it is of inordinate
length."
33.Correspondence to a prisoner from his solicitor and from the Commission
could therefore be opened by the prison authorities.
34.An exception was made in respect of correspondence with a solicitor
regarding pending legal proceedings:
Rule 37A provided:
"A prisoner who is a party to any legal proceedings may correspond with
his legal adviser in connection with the proceedings and unless the governor has
reason to suppose that any such correspondence contains matter not relating to
the proceedings it shall not be read or stopped under Rule 33(3) of these
Rules."
35.This rule was supplemented by Standing Order 5B which provided that
incoming correspondence from legal advisers which was marked "SO5B 32(3)" was
not to be read or stopped and was only to be opened for examination in the
presence of the inmate unless the governor has reason to suppose that the letter
was not in fact within the privilege conferred by Prison Rule 37A.
Position from 1 January 1994
36.An amendment was made to the Prison Rules which came into force on 1
January 1994: Prison (Amendment) (No. 2) Rules 1993.
"For rule 37A there shall be substituted the following-
Correspondence with legal advisers and courts
37A.-(1)A prisoner may correspond with his legal adviser and any court
and such correspondence may only be opened, read or stopped by the governor in
accordance with the provisions of this rule.
(2)Correspondence to which this rule applies may be opened if the
governor has reasonable grounds to suspect that it contains an illicit
enclosure...
(3)Correspondence to which this rule applies may be opened, read and
stopped if the governor has reasonable cause to believe its contents endanger
prison security or the safety of others or are otherwise of a criminal nature.
(4)A prisoner shall be given the opportunity to be present when any
correspondence to which this rule applies is opened and shall be informed if it
or any enclosure is to be read or stopped...
(6)In this rule, "court" includes the European Commission of Human
Rights, the European Court of Human Rights and the European Court of Justice..."
37.In an Instruction of Prison Governors (IGII3/1995) issued on 21 December
1995, HM Prison Service explained that pursuant to the revised rules
correspondence by a prisoner with their legal advisers must not be opened, read
or stopped except in the specific circumstances set out in the rule and even
then it can only be opened for examination in the presence of the prisoner.
Correspondence with courts, including the Commission, were to be afforded the
same confidentiality. It stated that there must be "strict compliance" with the
rule since any breach, even accidental, would be likely to lead to challenge in
both domestic and international courts. Governors were to ensure that the
Instruction was brought to the attention of the officers concerned and to take
such steps as were necessary to ensure that procedures were introduced to
maintain confidentiality, including adequate safeguards against inadvertent
opening.
III.OPINION OF THE COMMISSION
A.Complaints declared admissible
38.The Commission has declared admissible the applicant's complaints
concerning interference with his correspondence with his solicitor and the
Commission.
B.Point at issue
39.The issue to be determined in the present case is:
-whether there has been a violation of the applicant's right to respect for
his correspondence contrary to Article 8 (Art. 8) of the Convention.
C.As regards Article 8 (Art. 8) of the Convention
40.Article 8 (Art. 8) of the Convention provides as relevant:
"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 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."
41.The applicant submits that his correspondence has and continues to be
subject to a persistent practice of opening and an apology cannot be considered
in these circumstances as resolving the matter. It is emphasised that as a
mandatory life prisoner the applicant is in a vulnerable position and that the
civil rights which he still retains have assumed an enlarged significance for
him. The applicant has accordingly suffered significant distress from the
opening of his privileged correspondence. It is submitted that the continuing
incidents1 suggest that the Government do not take seriously their obligation to
protect a prisoner's privileged correspondence. He has submitted letters from
the Prison Reform Trust and the Prisoner's Advice Service referring to the many
complaints of opening of privileged correspondence and the problem that in
practice prison staff appear ignorant of, or simply ignore the rules.
42.The respondent Government acknowledge that one letter from the applicant's
solicitor was opened in breach of prison rules and accepts that other letters
from the applicant's solicitor or the Commission may also have been opened
pursuant to the rules in force. They point out that the rules have now changed
and it is now established that letters from solicitors and the Commission should
only be opened in the presence of a prisoner in specified circumstances. They
submit that an apology having been made in respect of one incident, the matter
should be regarded as resolved. Insofar as it is alleged that letters have been
opened since the change in the applicable rules, the Government state that this
happened by mistake in respect of two letters, the contents of which were not
read and for which an apology was made and that the applicant did not make
formal complaint in regard to any of the four alleged instances of opening.
43.The Commission recalls that opening and reading of correspondence by a
prisoner with his legal adviser and with the Commission was found to disclose a
violation of Article 8 (Art. 8) of the Convention in the Campbell case (Eur.
Court HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series A no.
233).
44.The Commission has examined the complaints of the applicant with reference
to the period before 1 January 1994 and after that date when the applicable
rules changed to take the Court's judgment into account.
Prior to 1 January 1994
45.Prior to 1 January 1994, the Commission notes that the Government
acknowledge that one letter from the applicant's solicitor was opened outwith
his presence and that pursuant to the rules in force at that time other letters
from the applicant's solicitor or the Commission may have been opened, as the
applicant alleges. No grounds of justification have been put forward, save that
in the acknowledged incident of opening a solicitor's letter this was stated by
the prison authorities to have been a mistake.
46.In these circumstances, the Commission finds that there has been a
violation of the applicant's right to respect for his correspondence within the
meaning of Article 8 (Art. 8) in relation to his correspondence with his
solicitor and the Commission.
Subsequent to 1 January 1994
47.Following 1 January 1994, the applicable prison rules changed, in light of
the Campbell case, to provide that correspondence by a prisoner with a legal
adviser and courts (including the Commission) should not be opened save in
specified circumstances where the Governor has reasonable cause to believe its
contents endanger prison security or the safety of others or are otherwise of a
criminal nature, and that where such correspondence is to be opened this should
take place in the presence of the prisoner.
48.Notwithstanding this change in the rules, the applicant complains that his
correspondence with his solicitor continues to be opened, referring to four
incidents. The Government have acknowledged that on two of these occasions the
letters were opened in error and apology made. They point out that the applicant
made no formal complaint about these matters.
49.The Commission notes that on at least two occasions letters with the
applicant's solicitor were opened, contrary to the rules in force and without
any justification on any ground under Article 8 para. 2 (Art. 8-2). It observes
that the incidents occurred in the period after the introduction of new rules
and that their implementation may have inevitably disclosed oversights or
misunderstandings at the beginning.
50.Nonetheless, the Commission recalls the importance of the link with the
outside world which correspondence offers to a prisoner, particularly in the
case of a longterm prisoner as the applicant and the strong elements of
confidentiality which attach to correspondence with legal advisers (see eg.
Campbell judgment op. cit. paras. 45 and 50). It accordingly behoves the
authorities, as acknowledged by the Government in the circular issued to prison
governors, to ensure strict compliance with rules and that proper procedures and
safeguards be put in place to avoid even inadvertent opening of protected
correspondence.
51.Since the applicant's complaints disclose more than an isolated incident
but an apparent failing in the procedures in the prison concerned, for which no
justification under Article 8 para. 2 (Art. 8-2) has been given, the Commission
finds that there has been a violation of his right to respect for his
correspondence through the opening of his correspondence with his solicitor.
CONCLUSION
52.The Commission concludes, unanimously, that there has been a violation of
Article 8 (Art. 8) of the Convention in respect of the opening of his
correspondence with the Commission and his solicitor prior to 1 January 1994 and
in respect of the opening of his correspondence with his solicitor after this
date.
M.F. BUQUICCHIOJ. LIDDY
Secretary President
to the First Chamber
of the First Chamber
Full & Egal Universal Law Academy