AS TO THE ADMISSIBILITY OF
Application No. 11523/85
by Harry GRACE
against United Kingdom
The European Commission of Human Rights sitting in private
on 4 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
F. MARTINEZ
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 27 March 1985
by Harry GRACE against United Kingdom and registered on 2 May 1985
under file N° 11523/85;
Having regard to
- reports provided for in Rule 40 of the Rules of Procedure of
the Commission;
- information submitted by the Government, pursuant to Rule 40
para. 2(a) of the Commission's Rules of Procedure, on
11 October 1985;
- comments in reply from the applicant on 30 October and
19 November 1985;
- the Commission's decision of 5 May 1986 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
1 October 1986;
- the observations in reply submitted by the applicant on
27 October 1986;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen, born in 1942, who
at the time of lodging his application was detained at H.M. Prison,
Parkhurst.
This is the applicant's third application to the Commission.
His first (Application No. 9551/81) was declared partially
inadmissible on 1 March 1982 and partially admissible as to the
complaint relating to prisoner's correspondence on 4 March 1985. The
Committee of Ministers found a breach of Article 8 of the Convention
in that case (Resolution DH (87) 3). His second application,
concerning the refusal of leave to appeal out of time against
conviction (Application No. 10951/84) was declared inadmissible on 4
March 1985.
In the present application, the applicant alleges that he only
discovered during the week commencing 15 April 1985 (from the
Assistant Prison Governor of the prison at which he was then detained)
that a further 14 of his letters had been stopped:
1. 17.2.80 from Liverpool Prison to G.H.
2. 19.8.80 " Hull Prison to H.H.
3. 5.7.82 " Hull Prison to C.G.
4.,5.(1982
undated) " Hull Prison to P.H. (solicitor)
6. (undated) " Hull Prison to J.R.
7. 15.7.82 " Hull Prison to B.Y.
8. 7.8.83 " Liverpool Prison to G.O. (M.P.)
9. 10.8.83 " Liverpool Prison to K.O. (Chief Constable
of Liverpool)
10. 24.8.83 " Albany Prison to C.R.
11. 23.11.83 " Albany Prison to General Medical Council
12. 21.5.84 " Wandsworth Prison to Judge P.
13. 23.5.84 " Wandsworth Prison to Judge P.
14. 28.6.84 " Albany Prison to E.C.
The applicant did complain of the censorship of letters Nos.
12 and 13 in separate petitions to the Home Secretary, which were
rejected in October and December 1984.
The applicant also petitioned the Home Secretary on 21 April
1985 concerning all the letters save letter 8. In the petition he
alleged violations of Articles 8 and 6 of the Convention.
On 31 October 1985 the Home Secretary decided to take no
action concerning the applicant's latter petition whilst his
complaints were pending before the Commission.
COMPLAINTS
The applicant complains of an unjustified interference with
his right to respect for correspondence ensured by Article 8 of the
Convention, because of the stopping of 14 of his letters by the prison
authorities.
He also alleges a violation of Article 6 of the Convention in
respect of letters Nos. 4, 5, 9, 11, 12 and 13.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 March 1985 and registered
on 2 May 1985. On 3 June 1985 the Rapporteur, pursuant to Rule 40
para. 2 (a) of the Commission's Rules of Procedure, requested
information from the Government concerning the factual circumstances
of the alleged stopping of the fourteen letters in question. The
Government submitted the information requested on 11 October 1985 to
which the applicant replied on 30 October and 19 November 1985.
On 5 May 1986 the Commission decided to give notice of the
application, pursuant to Rule 42 para. 2 (a) of its Rules of
Procedure, to the respondent Government, and to invite the parties to
submit their written observations on the admissibility and merits of
the application. The Government submitted their observations on
1 October 1986, to which the applicant replied on 27 October 1986.
SUBMISSIONS OF THE PARTIES
1. On the facts concerning the stopped letters
Letter 1 - 17.2.80 from Liverpool Prison to G.H.
The Government state that they have been unable to find the
relevant "submitted letters book", which is believed to have been lost
during a change in the location of the Censors' Department at
Liverpool Prison. However, they have no reason to believe that the
applicant was not informed of the stopping of this letter, but they
can find no record to confirm this. In this letter the applicant
asked G.H. to find a woman with whom he could correspond and have
visits. It was presumably censored for contravening the former
Standing Order 5A 23 (3), which forbade prisoners' communications with
persons not personally known to them before they came into custody,
subject to the prison governor's discretion, and forbade persons from
seeking pen friends. (This letter would not now be stopped under the
current Standing Order 5.)
The applicant claims that he was not informed of the stoppage
of this letter at the material time. If he had been given the reasons
for stoppage he would have re-written the letter. The letter should
anyway not have been stopped for the reasons now given by the
Government for its censorship.
Letter 2 - 19.8.80 from Hull Prison to H.H.
The Government concede that, as they hold the original of the
letter, it seems it was not posted. Permission was given for the
letter to be posted, but apparently the instructions were not carried
out. It had been originally held up for a security check.
The applicant claims that he was not informed of the stoppage
at the time and contends that the Government's submissions admit the
lack of justification for censorship.
Letter 3 - 5.7.82 from Hull Prison to C.G.
The Government state that this letter was stopped because the
applicant used a letter intended for his legal adviser to write to a
relation. He was, however, permitted to rewrite the letter. In view
of this it seems clear that the applicant was aware that the original
letter was stopped.
Standing Order 5 B 11 provides that "a convicted inmate who is
a party to legal proceedings .... may have extra letters on
application, provided that the letter is in connection with the
proceedings". It is recorded in the "submitted letters book" that the
prison governor noted that the applicant was abusing this privilege
and accordingly the letter was stopped as it failed to meet the
criteria of the Standing Order.
The applicant claims that he was not informed of the stopping
of this letter at the time. He was writing so many letters (some of
them rewrites) at that stage that any letter paper given to him would
not have specified that it was for rewriting a letter. The letter in
question did refer to some legal matters. Its censorship was not,
therefore, warranted.
Letter 4 - (1982 undated) from Hull Prison to P.H. (solicitor)
The Government have no record of the letter.
The applicant claims that the letter could not have been
undated as prison writing paper is issued date-stamped.
Letter 5 - (1982 undated) from Hull Prison to P.H. (solicitor)
As the Government hold the original of this letter they assume
that it must have been stopped. There is no record as to why, but it
may have been stopped because it contained unventilated complaints
about prison treatment. The applicant complained that he was being
victimised - by being moved to another wing of the prison - because he
had asked the solicitor to write to the governor about another matter.
At that time the simultaneous ventilation rule was applicable
(Standing Order 5 B 34 j). The simultaneous ventilation rule no
longer applies to legal correspondence, and this letter would no
longer be stopped.
The applicant claims that the prison governor was responsible
for the stopping of letters 4 and 5 and never recorded his decision
because he was allegedly victimising the applicant at the time and
wanted to impede the applicant in taking civil proceedings against
him. This is also why he was not informed of the censorship.
Letter 6 - (undated) from Hull Prison to J.R.
The Government hold the original of the letter and, therefore,
assume that it was stopped. There is no record as to why and there is
nothing on the face of the letter to indicate that it should have been
stopped. The Government have no reason to suppose that the applicant
was not informed of the stopping of the letter, but can find no record
to confirm this.
The applicant contends that the letter was illegally stopped
and the fact that the Government can offer no explanation as to why it
was censored shows that he was not informed that this had happened.
Letter 7 - 15.7.82 from Hull Prison to B.Y.
The Government state that the letter was stopped, in August
1982, according to the records, for being a misuse of an extra letter
(like letter 3 above). The applicant was apparently allowed to
rewrite the letter and did so, writing to B.Y. on 14 or 15 August
1982. Thus it seems clear that the applicant was aware that the
original letter was stopped.
The applicant claims that he was not informed of this
censorship, particularly in view of his busy correspondence at that
time (cf. comments on letter 3). No prison record proves that he was
called up and told of the censorship.
Letter 8 - 7.8.83 from Liverpool to G.O. (M.P.)
This letter was stopped because it contained unventilated
complaints. The prison records note that the applicant was called up
by the assistant prison governor and informed of the censorship, of
the internal ventilation procedure and of rewriting possibilities.
The simultaneous ventilation rule in Standing Order 5 B 34 j applies
to letters to Members of Parliament. The letter was properly stopped
under the rule because he was alleging that an inmate who had
committed suicide two and a half months previously had been
ill-treated by prison officers, and that another inmate had been
assaulted by officers.
The applicant claims that he was not "officially" informed of
the censorship which occurred because of his serious allegations,
which allegations were in fact investigated by the Liverpool Police.
He states that he did air the complaints in a statement to the
assistant prison governor. The applicant denies having been called up
and informed. He contends that the assistant governor was trying to
cover up the serious allegations he had made.
Letter 9 - 10.8.83 from Liverpool Prison to K.O. (Chief
Constable of Liverpool Police)
This letter was stopped because it contained one of the
complaints raised in letter 8 which had not been ventilated
internally. The assistant prison governor recalls investigating the
complaints made in letter 8 and informing the applicant of the
censorship of that letter and letter 9. The applicant was allowed a
special letter to the Chief Constable in respect of those matters he
had ventilated internally.
The applicant contends that all matters were raised internally
and that he was not informed of the censorship or offered a rewrite.
Significantly there is no record of any issue of a rewrite.
Letter 10 - 24.8.83 from Albany Prison to C.R.
This is a further case of censorship for misuse of a letter
issued under Standing Order 5 B 11 (see letters 3 and 7 above).
Although the applicant discussed legal matters in the letter, it was
clearly a "domestic" letter rather than "in connection with the
proceedings" in the sense of furthering the applicant's legal affairs.
The prison records show that the letter was stopped by the assistant
prison governor and that a substitute letter was issued to the
applicant on 29 August 1983 and posted the next day. He could not
therefore have been unaware that the earlier letter had been stopped.
The applicant claims that he was not "officially" informed of
this censorship and that the subsequent letter to C.R. was not a
rewrite.
Letter 11 - 23.11.83 from Albany Prison to General Medical
Council
The Government state that this letter was posted, bearing a
postmark of 1 December 1983. However it was returned by the Post
Office marked "insufficiently addressed".
The applicant claims that he was not informed of this
occurrence at the relevant time and was not given an opportunity to
readdress it correctly. It was, therefore, illegally stopped.
Letters 12 and 13 - 21.5.84 and 23.5.84 from Wandsworth
Prison to Judge P.
The Government state that the letters were stopped because
they contained threats. The applicant knew of their censorship
because he petitioned the Home Secretary about them being stopped in
May and June 1984. Their censorship was justified under Standing
Order 5 B 34 f.
The applicant claims that the letters did not contain threats,
but were illegally stopped in order to harass him.
Letter 14 - 28.6.84 from Albany Prison to E.C.
The Government state that this letter was stopped on 2 July
1984. They have no reason to believe that the applicant was not
informed of the stopping of the letter, but can find no record to
confirm this, the relevant "submitted letters book" having been lost.
Although the reasons for censorship are not clear, because this letter
was to another inmate it is possible that it was stopped under
Standing Order 5 B 26, or for containing cryptic references to
individuals, and, in particular, to "methods" used by staff, contrary
to Standing Order 5 B 34 e.
The applicant claims that he was not informed of the stoppage
at the time, which was allegedly illegal, the reasons now given by the
Government for censorship being a mere cover up.
2. Relevant domestic law and practice
The Government
The rules in England and Wales governing the stopping of
prisoners' correspondence are set out in prison Standing Order 5.
Standing Order 5 was revised in 1981 in the light of the relevant
provisions of the Convention and the Commission's Report in the case
of Silver and Others v. the United Kingdom.
Circular Instruction 34/1981, issued on 31 August 1981 to
accompany the new Standing Order 5 operative as of 1 December 1981,
provides as follows:
"When a letter has been stopped the inmate should be informed
without delay that it has been stopped, told the reason ....
and given the opportunity to rewrite the letter. The fact
that he has been so told should be recorded." (Part B
paragraph 12)
The previous Standing Order 5, which was in force when the
first two letters were stopped, contained a similar provision, but did
not require staff to record that a prisoner had been told.
Unfortunately, in the case of a number of the letters covered
by the application the record required by the Circular Instruction was
either not made, or cannot be traced. However where it has been
recorded that a letter has not been sent and that a further letter was
issued in its place (a rewrite), then that is in effect a record that
the inmate was told of the censorship of the first letter. A prisoner
would not be issued with a second letter without being told that the
first had been stopped. However the inmate does not always rewrite an
amended version of the stopped letter, so the absence of a record of
the issue of a second letter does not suggest a failure to tell him
that the letter was stopped.
To improve record keeping, the Government intends to issue a
Circular Instruction as to where the record should be made that a
prisoner has been told of a stoppage, and to make better arrangements
for the long-term storage of the relevant records. In addition
instructions will be issued to the effect that letters returned
undelivered by the Post Office should be returned to the prisoner (see
letter 11 above).
The applicant
The applicant has no observations on this aspect of the
Government's submissions.
3. Admissibility and merits
The Government waive objections as to the admissibility of
letters Nos. 1, 2, 5, 6 and 14, but point out that nowadays letters 1
and 5 would not be stopped for the reasons then applying. The
stopping of letters 2 and 6 were apparently administrative errors and
the facts regarding letter 14 are very obscure.
As regards the remaining letters the Government contend that
the complaint of their censorship is inadmissible for the following
reasons:
Letters 3, 7 and 10: Thee letters were stopped for good
reason in accordance with Standing Orders, and the applicant must have
been aware of this since he was permitted to rewrite them.
Letter 4: There is no evidence that this letter was ever
written.
Letters 8 and 9: These letters were stopped under the
simultaneous ventilation rule in accordance with Standing Orders.
In the case of letter 8 there is clear evidence that the applicant was
so informed; in the case of letter 9 it is highly likely that the
applicant was so informed.
Letter 11: This letter was not stopped, but returned by
the Post Office marked "insufficiently addressed".
Letters 12 and 13: These letters were stopped in accordance
with Standing Orders because they contained threats. The applicant
was aware that they had been stopped.
In short, the Government consider that in the case of letters 4
and 11 there was no interference with the applicant's right to respect
for his correspondence contrary to Article 8 para. 1 of the
Convention. In the case of letters 3, 7, 8, 9, 10, 12 and 13 the
interference was justified under Article 8 para. 2, as being in
accordance with the law and necessary in a democratic society for one
or other of the reasons given in Article 8 para. 2.
The Government reserve their submissions on the merits.
The applicant
It is implicit in the applicant's observations on the various
letters that he maintains his claim that all the letters in question
were censored in unjustifiable interference with his right to respect
for correspondence ensured by Article 8 of the Convention.
THE LAW
1. The applicant has complained of the stopping by the English
prison authorities of 14 of his letters, and of not informing him of
their censorship until April 1985 when he petitioned the Home
Secretary with his complaints.
He has invoked 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 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."
He has also invoked Article 6 para. 1 (Art. 6-1) of the Convention in
respect of the censorship of letters to a solicitor, the Chief Constable
of Liverpool Police, the General Medical Council and a judge (letters 4, 5, 9,
11, 12 and 13 above in THE FACTS). Article 6 para. 1 (Art. 6-1) of the
Convention provides for a fair hearing before an independent and impartial
tribunal in the determination of the individual's civil rights and obligations
or criminal charges against him. An inherent element of this provision is
access to court (Eur. Court H.R. Golder judgment of 21 February 1975 Series A
No. 18 para. 36).
2. The Government have raised no objection to the admissibility of
the applicant's complaints in respect of the following 5 letters:
17.2.80 to G.H. (letter 1 above in THE FACTS)
19.8.80 to H.H. (letter 2)
(undated 1982) to P.H. (letter 5)
(undated) to J.R. (letter 6)
June 1984 to E.C. (letter 14).
However, the Government contend that there has been no
unjustified interference with the other letters in question.
3. The Commission first notes that there is evidence that 12 of
the applicant's letters were stopped by the prison authorities. As
regards these letters,the Commission finds that there has been an
interference with the applicant's right to respect for correspondence
within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The
question whether that interference was in accordance with the law, and
necessary in a democratic society for one or more of the reasons laid
down in Article 8 para. 2 (Art. 8-2), is one which raises complex issues of law
and fact warranting an examination on the merits (cf. Eur. Court H.R.
judgment of Silver and Others of 25 March 1983, Series A No. 61, and
Comm. Report 11.10.80).
4. The Commission next notes that the applicant's letter of
23.11.83 to the General Medical Council (letter No. 11 above in THE
FACTS) was posted but returned by the Post Office marked
"insufficiently addressed", of which fact the applicant was not
informed at the material time. The Commission considers that although
there was no decision to stop this letter, the failure by the prison
authorities to inform the applicant of its return and to give him an
opportunity to complete the address, constitutes an interference with his right
to respect for correspondence under Article 8 para. 1 (Art. 8-1) of the
Convention. Whether that interference finds justification in the second
paragraph of Article 8 (Art. 8) is a question which raises complex issues of
law and fact also necessitating an examination on the merits.
5. Finally, the Commission observes that there is no record of
the censorship of one of the two undated 1982 letters to P.H.,
solicitor (letter No. 4 above in THE FACTS). Although the prison
records in the present case are apparently incomplete, the Commission
nevertheless finds the applicant's claims in respect of this letter
vague and unsubstantiated. Accordingly his complaint about its
alleged censorship must be rejected as being manifestly ill-founded,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicant's complaint that 13 of his letters were censored
by the prison authorities;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)