GRACE v. the UNITED KINGDOM



Application No. 11523/85

 

 

Harry GRACE

 

 

against

 

the UNITED KINGDOM

 

 

 

 

 

 

 

 

REPORT OF THE COMMISSION

 

(adopted on 15 December 1988)

 

 

TABLE OF CONTENTS

                                                                 page

 

I.      INTRODUCTION (paras. 1-18) ............................   1-3

 

        A.  The application (paras. 2-5) ......................    1

 

        B.  The proceedings (paras. 6-13) .....................   1-2

 

        C.  The present Report (paras. 14-18) .................   2-3

 

 

II.     ESTABLISHMENT OF THE FACTS (paras. 19-50) .............   4-10

 

        A.  The particular circumstances of the case

            (paras. 19-34) ....................................   4-7

 

        B.  The relevant domestic law and practice

            (paras. 35-50) ....................................   7-10

 

 

III.    SUBMISSIONS OF THE PARTIES (paras. 51-67) .............   11-14

 

        A.  The applicant (paras. 51-53) ......................     11

 

        B.  The Government (paras. 54-67) .....................   11-14

 

 

IV.   OPINION OF THE COMMISSION (paras. 68-131) ...............   15-28

 

        A.  Points at issue (para. 68) ........................     15

 

        B.  General considerations (paras. 69-99) .............   15-23

 

            a) As regards Article 8 of the Convention

               (paras. 69-97) .................................   15-22

 

               aa) The case-law of the Convention organs

                   (paras. 70-82) .............................   15-19

 

               bb) Matters outside the scope of the previous

                   case-law of the Convention organs

                   (paras. 83-97) .............................   19-22

 

            b) As regards Article 6 para. 1 of the Convention

               (paras. 98-99) .................................   22-23

 

        C.  The present case (paras. 100-121) .................   23-27

 

            a) As regards Article 8 of the Convention

               (paras. 100-118) ...............................   23-26

 

               aa) Letter 1 (para. 101) ........................    23

 

                   Conclusion (para. 102) ......................    23

 

               bb) Letters 2 and 5 (para. 103) .................    24

 

                   Conclusion (para. 104) ......................    24

 

               cc) Letters 3, 6 and 9 (para. 105) ...............   24

 

                   Conclusion (para. 106) .......................   24

 

               dd) Letter 4 (para. 107) .........................   24

 

                   Conclusion (para. 108) .......................   25

 

               ee) Letter 7 (para. 109) .........................   25

 

                   Conclusion (para. 110) .......................   25

 

               ff) Letter 8 (para. 111) .........................   25

 

                   Conclusion (para. 112) .......................   25

 

               gg) Letter 10 (para. 113) ........................  25-26

 

                   Conclusion (para. 114) .......................   26

 

               hh) Letters 11 and 12 (para. 115) ................   26

 

                   Conclusion (para. 116) .......................   26

 

               ii) Letter 13 (para. 117) ........................   26

 

                   Conclusion (para. 118) .......................   26

 

            b) As regards Article 6 para. 1 of the Convention

               (paras. 119-121) .................................   27

 

               aa) Letters 4, 8, 10, 11 and 12

                   (paras. 119-120) .............................   27

 

               bb) Conclusion (para. 121) .......................   27

 

        D.  Recapitulation (paras. 122-131) .....................  27-28

 

 

Dissenting opinion of MM. Vandenberghe and Rozakis ..............   29

 

 

 

 

APPENDIX I      History of the proceedings

                before the Commission ...........................  30-31

 

APPENDIX II     Decision on the admissibility

                of the application ..............................  32-4

 

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 United Kingdom citizen, born in 1942, who

at the time of lodging his application was detained in H.M. Prison,

Parkhurst.  He was released from prison in February 1987 and is now

resident in Widness, Cheshire.

 

3.      The applicant was unrepresented before the Commission.  The

Government were represented by their Agents, Mrs.  A. Glover, succeeded

by MM. M.R. Eaton and M.C. Wood, all of the Foreign and Commonwealth

Office.

 

4.      The applicant has made two previous applications to the

Commission.  His first application (No. 9551/81) was declared

partially inadmissible on 1 March 1982 and partially admissible on

4 March 1985 as to the complaint relating to the censorship of

prisoners' correspondence.  The Committee of Ministers found a breach

of Article 8 of the Convention in that case (Resolution DH (87) 3, see

also Comm.  Report 18.10.85).  His second application, concerning the

refusal of leave to appeal out of time against conviction (No. 10951/84),

was declared inadmissible on 4 March 1985.

 

5.      In the present application the applicant complains of a

further allegedly unjustified interference with his right to respect

for correspondence, ensured by Article 8 of the Convention, as regards

the stopping by prison authorities of 12 of his letters and as regards

a lack of information about the posting of another letter.  In respect

of five of the letters in question the applicant also complains of a

breach of his right of access to court, ensured by Article 6 para. 1

of the Convention.

 

B.      The proceedings

 

6.      The application was introduced on 27 March 1985 and registered

on 2 May 1985.  It concerned the alleged interference by prison

authorities with a total of 14 letters.

 

7.      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

interference with the 14 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.

 

8.      On 5 May 1986 the Commission decided in accordance with Rule

42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to present

before 18 July 1986 their observations in writing 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.

 

9.      On 4 March 1987 the Commission declared the application

admissible as regards an interference with 13 of the letters cited by

the applicant.  It also found the complaint of censorship concerning

one of the letters manifestly ill-founded and, therefore,

inadmissible, pursuant to Article 27 para. 2 of the Convention.

 

10.     On 8 April 1987 the parties were invited to submit their

written conclusions on the merits of the application.  On 28 April

1987 the Government informed the Commission that they did not propose

to submit further evidence or observations in the case.  A similar

response was received from the applicant on 21 June 1987.

 

11.     On 4 March 1988 the Commission considered the merits of the

application and took their final votes on the case excepting the

conclusions at paras. 107-112 below.  On 10 March 1988 the Commission

decided to invite the parties to submit their written observations on

the merits of the application of the simultaneous ventilation rule to

three of the applicant's letters.  The Government submitted their

observations on 29 April 1988.  On 22 July 1988 the applicant informed

the Commission that he left the matter in the hands of the Convention

organs.

 

12.     On 6 December 1988 the Commission considered the merits of the

outstanding question of the simultaneous ventilation rule and took

their final votes on this aspect of the case (paras. 107-112 below).

On 15 December 1988 the Commission adopted the text of the Report.

 

13.     After declaring the case admissible, the Commission, acting

in accordance with Article 28 para. b of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case.  In the light of the parties' reaction, the

Commission now finds that there is no basis upon which a settlement

can be reached.

 

C.      The present Report

 

14.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present (1):

 

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     F. ERMACORA

                     E. BUSUTTIL

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H. DANELIUS

                     H. VANDENBERGHE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

 

-----

   (1)  The Composition of the Commission of 4 March 1988 when the

        Commission took the final votes at paragraphs 102, 104, 106,

        114, 116, 118 and 121 was as follows: MM. Nørgaard, Trechsel,

        Ermacora, Busuttil, Gözübüyük, Weitzel, Soyer, Danelius,

        Batliner, Campinos and Vandenberghe, Mrs.  Thune, Sir Basil

        Hall, MM. Martinez and Rozakis and Mrs.  Liddy.

 

 

15.     The text of this Report was adopted by the Commission on

15 December 1988 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

 

16.     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.

 

17.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

 

18.     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.      The particular circumstances of the case

 

19.     Whilst the applicant was detained in prison 12 of his letters

were stopped by the prison authorities and, as regards a further

letter, the prison authorities did not inform the applicant that it

had been returned by the Post Office undelivered.  These letters are

as follows:

 

20.     Letter 1, whilst the applicant was at H.M. Prison

Liverpool, dated 17 February 1980 and addressed to G.H.

        In this letter the applicant asked G. H. to find a woman with

whom he could correspond and have visits.  It was apparently stopped

by the prison authorities for contravening Standing Order 5 A 23 (3),

prohibiting prisoners' correspondence with persons unknown to them

prior to their imprisonment and prohibiting the seeking of pen

friends.

 

21.     Letter 2, whilst the applicant was detained at H.M. Prison

Hull, dated 19 August 1980 and addressed to H.H.

        In this letter to a friend the applicant provided news and

comments about his family, friends and acquaintances.  Permission was

given for the letter to be posted after a security check, but

apparently the instructions were not carried out.

 

22.     Letter 3, whilst the applicant was detained at H.M. Prison

Hull, dated 5 July 1982 and addressed to C.G.

        The applicant used a letter intended for his legal adviser to

write to his daughter principally about domestic matters because, as

he said in the letter, he had already used his ordinary letter

allowance that week.  One paragraph of the four page letter informs

his daughter about a forthcoming visit from his solicitor and a police

investigation relating to his last trial.  It is recorded in the

"Submitted letters book" that the applicant was abusing the legal

letter privilege.  Accordingly the letter was stopped because it

failed to meet the requirements for legal letters laid down in

Standing Order 5 B 11.

 

23.     Letter 4, whilst the applicant was detained at H.M. Prison

Hull, undated and addressed to P.H. (Solicitor).

        In this letter the applicant confirmed details of a recent

consultation that he had had with his solicitor at the prison and

complained, inter alia, that he was being victimised by being moved to

another wing of the prison because he had asked his solicitor to write

a letter of complaint to his prison governor concerning another

matter.  He requested a further consultation with the solicitor for

advice about the alleged harassment.  Although there is no specific

record of why the letter was stopped, the Government have suggested it

may have been stopped for containing unventilated complaints about

prison treatment, contrary to the simultaneous ventilation rule

applicable at the time (Standing Order 5 B 34j).  There is no evidence

to support the applicant's allegation that he was not informed of the

censorship and given the opportunity, as was standard practice, to

raise the complaint through the internal channels or immediately

rewrite his letter omitting the offending elements.

 

24.     Letter 5, whilst the applicant was detained at H.M. Prison

Hull, undated and addressed to J.R.

        This letter concerned visiting orders which the applicant had

sent out and a question whether the persons concerned could visit him.

There is no record of the reasons for censorship or any indication in

the letter of why it should have been stopped.

 

25.     Letter 6, whilst the applicant was detained at H.M. Prison

Hull, dated 15 August 1982 and addressed to B.Y.

        The applicant used a letter intended for his legal adviser to

write to a friend about purely personal matters, and about possible

visits in particular.  It was stopped for abusing the legal letter

privilege laid down in Standing Order 5 B 11 (cf. letter 3 para. 22

above).

 

26.     Letter 7, whilst the applicant was detained at H.M. Prison

Liverpool, dated 7 August 1983 and addressed to G.O. (Member of

Parliament).

        In this letter the applicant alleged that an inmate, who had

committed suicide, had been ill-treated by prison officers, and that

another inmate had been assaulted.  It was stopped because it

contained unventilated complaints, contrary to Standing Order 5 B 34j.

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 the possibility of immediately

rewriting the letter omitting the offending elements.

 

27.     Letter 8, whilst the applicant was detained at H.M. Prison

Liverpool, dated 10 August 1983 and addressed to K.O., Chief Constable

of the Liverpool Police.

        The letter was stopped for the same reason as letter 7, for it

contained the same allegations.  The assistant prison governor

investigated these allegations of ill-treatment of another prisoner,

after which the applicant was allowed a special letter to write to the

Chief Constable, who ordered a police investigation of the matter.

 

28.     Letter 9, whilst the applicant was detained at H.M. Prison

Albany, dated 24 August 1983 and addressed to C.R.

        This stopped letter was to a friend and briefly described,

inter alia, part of the applicant's trial, but it was not deemed to

satisfy the criteria of a legal letter, in accordance with Standing

Order 5 B 11, for which purpose it had been issued.  That is to say,

although the applicant in part discussed matters related to legal

business in the letter, it was considered to be a "domestic" letter

rather than "in connection with the proceedings" in the sense of

furthering the applicant's legal affairs (see letters 3 and 6 paras.

22 and 25 above).

 

29.     Letter 10, whilst the applicant was detained at H.M. Prison

Albany, dated 23 November 1983 and addressed to the General Medical

Council.

        The applicant was issued with a special letter to write a

letter of complaint about the prison medical service to the General

Medical Council.  The letter was posted, but subsequently returned by

the Post Office marked "insufficiently addressed".  The applicant was

not informed of this occurrence at the relevant time.

 

30.     Letter 11, whilst the applicant was detained at H.M. Prison

Wandsworth, dated 21 May 1984 and addressed to the applicant's trial

judge.

        The letter concerned allegations of an "illegal cover-up" by

the trial judge, the prosecution and defence counsel in his case.  He

accused the judge of "corrupt acts" and declared as follows:

 

        "I will hound and persecute you until you eventually tell

        the truth concerning myself and what took place.  It is no

        great mental exercise for me to locate your home and you

        can rest assured that upon my eventual release from prison

        you will find me at your door.  I shall have the truth out

        of you then ....  I will definitely have the truth from

        your lips, in any way I possibly can ....  I give you another

        opportunity to tell the truth and hope you have the sense to

        divulge it now."

 

        The letter was stopped for containing threats, contrary to

Standing Order 5 B 34f.

 

31.     Letter 12, whilst the applicant was detained at H.M. Prison

Wandsworth, dated 23 May 1984 and addressed to the same trial judge.

        In this letter the applicant described as "devious" and "evil"

the conspiracy to cover up a "major scandal", for which conspiracy he

held the trial judge responsible.  He stated that he would expose his

case to the media, go to the judge's home and would not give up until

the judge relents and tells the truth:

 

        "If I have to be further arrested in the years to come,

        I will be, and I will make sure your life is hell until

        you tell the whole truth of what you were a party to ....

        I hope your conscience eventually causes you to tell the

        truth.  If it does not I will continue to hound you until

        you tell the truth."

 

        This letter was also stopped for containing threats, contrary

to Standing Order 5 B 34f.

 

32.     Letter 13, whilst the applicant was detained at H.M. Prison

Albany, dated 28 June 1984 and addressed to E.C.

        The letter was addressed to another inmate and in it the

applicant wrote about prison life in the following manner:

 

        "I'm sorry to hear your move to L/L was a (NURSERY RHYME)

        so to speak.  However, not to worry, you're adopting the

        right (TACTICS) now and you won't fall for the stories

        again.  I DID TRY TO TELL YOU HOW THEY WORK ... once they

        realise you are (GULLIBLE) they are masters at feeding

        you STRAWBERRIES ALL DAY ....

 

        How's (PRP), still as amusing as ever (BANG).  I'll show

        him what amusement is, I can tell you ...."

 

        There is no surviving record of the reason for the censorship

of the letter, but the Government have suggested that it was probably

stopped either for being an unauthorised letter to another inmate,

contrary to Standing Order 5 B 26, or for containing cryptic

references to individuals and "methods" used by prison staff, contrary

to Standing Order 5 B 34e.

 

33.     The applicant complained in separate petitions to the Home

Secretary about the censorship of letters 11 and 12.  His petitions

were rejected in October and December 1984.  The applicant also

petitioned the Home Secretary on 21 April 1985 concerning the

censorship of all the letters, save letter 7, once the extent of the

censorship of his letters had been confirmed by the assistant prison

governor during the week commencing 15 April 1985.

 

34.     In the latter petition he alleged violations of Articles 6 and

8 of the Convention.  On 31 October 1985 the Home Secretary decided to

take no action whilst the applicant's complaints were pending before

the Commission.

 

B.      The relevant domestic law and practice

 

35.     By virtue of the Prison Act 1952 the Home Secretary is

responsible for prisoners and 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" (Section 47 (1) Prison Act 1952).  Such rules are contained

in statutory instruments laid before Parliament, presently the Prison

Rules 1964, as amended.

 

36.     Rule 33 (1) of those Rules states the Home Secretary's

discretion to control prisoners' communications, either generally or

in a particular case, for the maintenance of discipline and good

order, the prevention of crime or the protection of the interests of

any person.  It is only with the Home Secretary's leave that a

prisoner may communicate with the outside world, the prison governor

or authorised prison officer having the power to examine

correspondence and stop any which is "objectionable" (Rule 33 (2) and

(3)).  In particular, Rule 34 (8) prohibits communications "with any

person in connection with any legal or other business, or with any

person other than a relative or friend, except with the leave of the

Secretary of State".

 

37.     With a view to securing uniformity of practice throughout

prison establishments, the Home Secretary also issues to prison

governors management guidelines in the form of Standing Orders or

Circular Instructions.  At the material time, the Standing Orders

further delimited prisoners' rights to correspond, the following

examples being relevant to the present case:

 

38.     Standing Order 5 A 23 (3) limited correspondence with

persons not personally known to the prisoner before he was detained,

and forbade the seeking of pen friends.  This restriction was

abolished with the general reform of censorship rules and practices

which came into force on 1 December 1981.  It was relevant to the

censorship of letter 1 (para. 20 above).

 

39.     Standing Order 5 B 40, concerning the circumvention or

evasion of regulations, prohibits an inmate asking "another person to

make a communication on his behalf which he would not be allowed to

make himself direct".  Considerations concerning the justification for

such a rule are relevant to the censorship of letters 3, 6 and 9

(paras. 22, 25 and 28 above) and the comparable alleged abuse of

regulations by the applicant.

 

40.     Standing Order 5 B 11 permits "a convicted inmate who

is a party to legal proceedings (including an appeal against

conviction or sentence) (to) have extra letters on application,

provided that the letter is in connection with the proceedings".  The

proviso in this Standing Order was relevant to the censorship of

letters 3, 6 and 9 (paras. 22, 25 and 28 above).

 

41.     Standing Order 5 B 34j provides that "general

correspondence" may not contain the following:

 

        "Complaints about prison treatment which the inmate has not

        yet raised through the prescribed procedures unless the

        complaints are about a matter already decided at region or

        headquarters or the complaints are about a matter which

        does not require investigation or on which no corrective

        or remedial action is possible, such as complaints of a

        general nature about conditions, e.g. about overcrowding

        or poor facilities, which are basically descriptive of the

        conditions the inmate is experiencing and his feelings about

        them.  As soon as a complaint about prison treatment has

        been made through the prescribed procedures it may be

        mentioned in correspondence...  Statements about prison

        treatment are not treated as complaints when they are

        matters of fact, e.g. that an inmate has suffered injury,

        or that he has been punished for an offence against prison

        discipline, or that he is in the process of making a

        complaint through the proper channels."

 

This restriction, otherwise known as the simultaneous ventilation

rule, was relevant to the censorship of letters 4, 7 and 8 (paras. 23,

26 and 27 above).  Since 1984 it has not applied to legal

correspondence, so letter 4 would no longer be stopped.  This reform

in respect of correspondence with lawyers was a result of the case of

R v.  Secretary of State for the Home Department, ex parte Anderson

((1984) 1 All ER 920), in which it was held that the prerequisite of

making a written complaint to the prison governor before being allowed

access to a solicitor impeded the right of access to court because it

exposed the prisoner to the possibility of being charged under Rule 47

(12) of the Prison Rules 1964 with the disciplinary offence of making

a false and malicious allegation against a prison officer.  The

simultaneous ventilation rule was, therefore, deemed ultra vires

(Section 47 (1) of the Prison Act 1952 and Rule 33 of the Prison Rules

1964).

 

42.     The simultaneous ventilation rule operates in practice as

follows:  an outgoing letter which offends against the simultaneous

ventilation rule is not sent.  The prisoner is informed that his

letter has been stopped and told that he should make his complaints in

the prescribed manner before a letter containing those complaints may

be posted.  The stopped letter is filed in his record and he is given

the opportunity of re-writing it.  If he chooses to re-write it

omitting the complaints, that letter is posted without more.  If he

chooses to make a complaint internally he may re-write his letter,

repeating or modifying the complaints as he chooses.

 

43.     As mentioned above in paragraph 41, reinforcing the

simultaneous ventilation rule is the disciplinary offence, pursuant to

Rule 47 (12) of the Prison Rules 1964, for a prisoner to make false

and malicious allegations against a prison officer.  A prisoner will,

 

however, not be proceeded against for such an offence unless he has

made his complaint formally and following a warning designed to ensure

that he is fully aware of his position.  This is to ensure that

prisoners are not proceeded against on the basis of insubstantial

evidence or in respect of complaints made in ignorance of the

consequences.  The form of document commonly given to a prisoner who

wishes to make a complaint against a member of staff is as follows:

 

        "Having indicated that you wish to make a complaint

        against a member of staff, the following warning is

        administered, not to put pressure upon you, but to

        make sure you understand your position.  If you believe

        a member of staff has behaved improperly you are right

        to report the matter and if you can show that what you

        say is true, you have nothing to fear.  On the other

        hand a false and malicious allegation by an inmate

        against a member of staff is a disciplinary offence.

        An allegation is false and malicious if the allegation

        is untrue, and you make it knowing it to be untrue or

        without caring whether it is true or not.  Do you

        understand that?  It is for you to decide whether you

        wish to pursue your complaint.  If you do, your complaint

        will be fully investigated and you will not have another

        opportunity to withdraw it.  It will be up to you to show

        that what you say is true or at least that you have good

        reason for believing it to be true.  If the investigation

        appears to show that your allegation is false and that

        you either knew it was false or did not care whether it

        was true or false, you may be charged with making a false

        and malicious allegation against an officer.  If on

        reflection you wish to withdraw your complaint, you may

        do so and that will be the end of the matter.  If having

        considered the matter you wish to continue you:  (i) must

        make a full written statement of your complaints; (ii) may

        add any further relevant information to the written statement

        you have already made; (iii) must give the name of any person

        who you wish to give evidence."

 

44.     Standing Order 5 B 34f prohibits correspondence

containing "threats of violence or of damage to property likely to

induce fear in the recipient".  This restriction was relevant to the

censorship of letters 11 and 12 (paras. 30 and 31 above).

 

45.     Standing Order 5 B 26 states that "correspondence with

another convicted inmate requires the approval of both governors".

Approval "should be given unless there is reason to believe that such

correspondence will seriously impede the rehabilitation of either, or

where it would be desirable, in the interests of security or good order

or discipline, that the inmates concerned should be separated from

each other, or prevented from communicating with each other".  This

requirement was relevant to the censorship of letter 13 (para. 32

above).  Prior to December 1981 correspondence between prisoners was

not generally allowed.

 

46.     Standing Order 5 B 34e prohibits correspondence containing

"obscure or coded messages which are not readily intelligible or

decipherable".  This prohibition was also relevant to the censorship

of letter 13 (para. 32 above).

 

47.     The regulations in England and Wales governing the stopping of

prisoners' correspondence were 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 (Comm.  Report

11.10.80, Eur.  Court H.R., Series B No. 51).

 

48.     Circular Instruction 34/1981, issued on 31 August 1981 to

accompany the new censorship practices contained in 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

        para. 12).

 

49.     Since the communication of the present case to the respondent

Government, instructions have been issued to improve record keeping

and storage, including a record as to whether the prisoner has been

informed that his correspondence has been stopped.  Instructions have

also been issued so that prisoners are to be given their outgoing

letters if they are returned by the Post Office undelivered (cf.

letter 10 para. 29 above).

 

50.     Since 1 December 1981 the censorship rules contained in

Standing Order 5 have been notified to prisoners; prior to that they

were confidential.

 

III.    SUBMISSIONS OF THE PARTIES

 

 

A.      The applicant

 

51.     The applicant contends that there has been an unjustified

interference with his correspondence, contrary to Article 8 of the

Convention.  He also claims to be a victim of a violation of Article 6

of the Convention in respect of the censorship of letters 4, 8, 10, 11

and 12.

 

52.     The applicant alleges that he was not informed of the

censorship of each of his letters at the material time and that he

only discovered the extent of the interference with his correspondence

when informed by an assistant prison governor during the week

commencing 15 April 1985.

 

53.     As regards the individual letters, the applicant makes the

following comments on the disputed justification for censorship:

 

        Letter 3:  Although written to his daughter, the

        applicant claims that it did contain legal matters even if

        there were other more mundane subjects in the letter.

 

        Letters 11 and 12:  The applicant alleges that these

        letters to his trial judge "did not contain direct threats

        at all" and that they were stopped illegally in order to

        harass him.

 

B.      The Government

 

54.     The Government concede that the interference with letters 2

and 5 was apparently an administrative error and that the facts

regarding the stopping of letter 13 are obscure.  They also point out

that, in view of the reform of the prison censorship rules and

practices, letters 1 and 4 would no longer be stopped for the reasons

then applying.

 

55.     However, as regards letter 10, it is contended that there

was no interference with the applicant's right to respect for

correspondence, contrary to Article 8 para. 1 of the Convention.

 

56.     As regards letters 3, 6, 9, 11 and 12, the Government submit

that they were stopped for good reason under the relevant Standing

Orders.  Accordingly, the resultant interference with the applicant's

right to respect for correspondence was justified under Article 8

para. 2 of the Convention, as being in accordance with the law and

necessary in a democratic society for one or other of the reasons

prescribed in that provision.

 

57.     The Government state that, although the records in the

applicant's case are incomplete, there is no reason to suppose that

the applicant was not adequately informed of each incident of

censorship, except presumably in respect of letter 2 which was

supposed to have been posted.  It is normal practice for prisoners to

be informed immediately of the stopping of any of their letters and to

be given an opportunity to rewrite them omitting the offending parts.

 

58.     As regards letters 4, 7 and 8, the Government state that these

three letters were stopped for failing to observe the simultaneous

ventilation rule (paras. 41-43 above).  This regulation was introduced

in 1981 to comply with the Commission's opinion, upheld by the Court,

that the requirements of prison security and administration would be

satisfied by a system of internal enquiry based upon a simultaneous

ventilation rule rather than the prior ventilation rule, which had

previously been in operation (Silver and Others v. the United Kingdom,

Comm.  Report 11.10.80, Eur.  Court H.R., Series B no 51, paras. 301-302

and 313).

 

59.     The primary objective of the regulation is to ensure swift and

thorough investigation of complaints.  This is in the interests of

both prisoners and staff.  Its purpose is not to limit allegations

against staff but to ensure that such allegations are promptly dealt

with in a way that is fair to prisoners and prison officers alike.

 

60.     It is fundamental to the good order and discipline of a prison

that complaints about prison treatment are communicated to the prison

governor as soon as they arise and that an investigation can be made

and appropriate action taken as soon as possible.  In this respect it

would be most unsatisfactory if complaints about prison treatment were

being aired outside the prison before the prison authorities have had

a chance to investigate and remedy the matter of which complaint is

made.  Malpractices in a closed institution can affect the lives of

all those who have to live and work in the institution.  It is,

therefore, of the greatest benefit to them that complaints about the

running of such institutions should be speedily investigated and

resolved.

 

61.     It is particularly important that complaints against members

of staff should be speedily investigated.  If a prisoner makes an

allegation against an officer, which on investigation seems well

founded, it may be necessary to suspend the officer from duty.  On the

other hand a prisoner might make an allegation against an officer

which on investigation seems to be false and malicious.  By virtue of

Rule 47 (12) of the Prison Rules 1964 it is a disciplinary offence to

make a false and malicious allegation against an officer.  It would be

difficult to bring such a charge if the prisoner had not made his

allegation in prison.

 

62.     It is necessary that the prisoner be required to make his

complaint in a formal and detailed way in order that it can be

properly and speedily investigated.  In this context the Government

repeat that a complaint made about the conduct of an officer, may

lead to a charge being brought under Prison Rule 47 (12) (see para. 43

above).  In these circumstances it is clearly necessary that there

should be a clear and detailed statement of the complaint.  This means

in practice that the letter has to be stopped; a proper internal

investigation could not simply proceed on the basis of the material

contained in the offending letter, which might be insufficiently

precise or incomplete.  The practice of retaining the stopped letter

in the prisoner's record is designed to ensure that the letter will be

available if a question should subsequently arise as to whether the

simultaneous ventilation rule was properly applied, or if it is needed

for the purpose of any internal inquiry.  However, this practice does

not prejudice the prisoner, because he has the choice of repeating the

material in a subsequent letter, or modifying it, as he chooses.

 

63.     While it would be possible to allow the original letter to be

sent provided that a complaint was made through the proper channels,

such a change is not, in the Government's submission, required by the

Convention and would not necessarily be in the best interests of

prisoners generally having regard to the aforementioned considerations.

There is likely to be advantage, for the prisoner and for the prison

authorities, if outside complaints are re-stated or, where

appropriate, re-formulated when the internal complaints are made to

the prison authorities.

 

64.     The Government contend that the simultaneous ventilation rule

is justified under Article 8 para. 2 of the Convention, as being in

accordance with the law (published Standing Order 5) and necessary for

the prevention of disorder (the ordinary and reasonable requirements

of imprisonment justifying a system of internal inquiry into

prisoners' complaints).  It is supported by the case-law of the

Commission and the Court (the aforementioned Silver case; the Court's

expression of satisfaction with the reform of censorship laws in that

case, Eur.  Court H.R. judgment of 25 March 1983, Series A no. 61 para.

79 and noted by the Committee of Ministers in Resolutions DH (85) 15,

DH (86) 5, DH (86) 6, DH (86) 8, DH (87) 3 and DH (87) 7; the case of

Campbell and Fell v. the United Kingdom, Comm.  Report 12.5.82, paras.

140-156, and Eur.  Court H.R. judgment of 28 June 1984, paras. 105-111;

Costello v. the United Kingdom, Comm.  Report 18.10.85; Byrne and

Others v. the United Kingdom, Comm.  Report 3.12.85; Reed v. the United

Kingdom, Comm.  Report 12.12.81 and its friendly settlement on the

basis of the reform embodying the simultaneous ventilation rule, D.R.

25 p. 5).

 

65.     In these circumstances the Government submit that the stopping

of a letter which fails to observe the simultaneous ventilation rule

is a proportionate sanction constituting a justified interference, for

the prevention of disorder, with a prisoner's right to respect for

correspondence.

 

66.     Whilst the applicant's letter 4 to his lawyer would no longer

be stopped following the Anderson case (R v.  Secretary of State for

the Home Department, ex parte Anderson (1984) 1 All ER 920), and the

lifting of the simultaneous ventilation rule from correspondence

with legal advisers about proposed civil litigation, the Government

submit that its application to this letter was nevertheless not in

breach of the Convention.  The same submission is made for letter 8 to

the applicant's Member of Parliament, which contained serious

allegations of assault and other alleged abuses of authority committed by

unnamed prison officers.  These are the kind of allegations which

require prompt and thorough investigation after more information has

been provided.  It could have been extremely damaging to the

reputation of all staff at the prison and to prisoner/staff relations

if such vague allegations circulated outside prison in circumstances

where they could not be investigated by the internal machinery.

Against this background there was no significant interference with the

applicant's access to his Member of Parliament.  He could have

re-written his letter after raising his complaint internally, but he

did not choose to do so (cf.  Commission's striking off of No. 7990/77

Gallogly v. the United Kingdom as representing no general interest and

yet it concerned, inter alia, a complaint of interference with a

prisoner's letters to his Member of Parliament, Comm.  Report 2.10.84,

D.R. 38 p. 5).

 

67.     The Government adopt the same arguments as regards the

applicant's letter 7 to the Chief Constable of Merseyside

Constabulary.  In addition the Government point out that the applicant

was given a special letter to raise the allegation of assault with the

police, because that particular allegation had by then been raised

internally.

 

IV.     OPINION OF THE COMMISSION

 

 

A.      Points at issue

 

68.     The points at issue in the present application are as follows:

 

        a) Whether, as regards 13 of the applicant's letters (paras.

20-32 above), there has been an unjustified interference by prison

authorities with the applicant's right to respect for correspondence,

contrary to Article 8 (Art. 8) of the Convention.

 

        b) Whether, as regards the handling of five of the applicant's

letters (Nos. 4 para. 23, 8 para. 27, 10 para. 29, 11 para. 30 and 12

para. 31 above) by prison authorities, there has been a denial of

access to court, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

 

B.      General considerations

 

        a) As regards Article 8 (Art. 8) of the Convention

 

69.     The relevant part of Article 8 (Art. 8) of the Convention reads 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."

 

        aa) The case-law of the Convention organs

 

70.     In the case of Silver and Others v. the United Kingdom (Comm.

Report 11.10.80, Eur.  Court H.R., Series B No. 51) the Commission held

as follows:

 

        "... a prisoner has the same right as a person at liberty

        to respect for his correspondence, the ordinary and reasonable

        requirements of imprisonment being of relevance in assessing

        the justification for any interference with that right under

        the exceptions permitted by Article 8 para. 2 (Art. 8-2) ...

 

        The Commission considers, therefore, that the right under

        Article 8 para. 1 (Art. 8-1) to respect for correspondence envisages

        a free flow of such communications, subject only to the

        limitations prescribed by Article 8 para. 2 (Art. 8-2).

 

        The Commission concludes that the censorship of prisoners'

        correspondence by prison authorities, in principle,

        constitutes an interference with the right of prisoners to

        respect for their correspondence under Article 8 para. 1

( Art. 8-1)." (paras. 269-271)

 

        "Article 8 para. 2 (Art. 8-2) of the Convention requires that any

        interference with a person's right to respect for

        correspondence be firstly in accordance with the law ...

 

        The Commission considers that phrase ... is not

        merely a reference to the State's domestic law, but also

        a reference to the rule of law, or the principle of legal

        certainty, which is common to democratic societies and

        the heritage of member States of the Council of Europe."

        (paras. 277 and 281)

 

71.     This entails two requirements - the law must be adequately

accessible and foreseeable (Eur.  Court H.R.,Sunday Times judgment of

26 April 1979, Series A No. 30 para. 49).  Thus whilst the Prison

Rules 1964, as amended, satisfy the requirement of accessibility, the

same could not be said of the confidential management guidelines

(Standing Orders and Circular Instructions) prior to December 1981,

unless they could be reasonably deduced from the Rules.  Consideration

of the foreseeability test was postponed to the examination of the

substantive justification issues (aforementioned Silver and Others

Report, paras. 282-285).

 

72.     Concerning restrictions on prisoners' letters to "any person

in connection with any legal or other business, or with any person

other than a relative or friend, except with the leave of the

Secretary of State", the Commission noted that there was specific

provision for this in Rule 34 (8) of the Prison Rules 1964, and

concluded, assuming that these restrictions would be applied pursuant

to Rule 33 (1) of those Rules, that, in principle, such restrictions

were "in accordance with the law" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention (Silver and Others Report, paras. 327-329,

336-338 and 395-396).  Furthermore, the Commission found that the

prohibitions in the management guidelines on attempts to circumvent or

evade prison regulations and on threats of violence were obvious

requirements of imprisonment, which flow clearly from the Home

Secretary's powers under Rule 33 (1) of the Prison Rules 1964 to

impose restrictions "with a view to securing good order and

discipline".  In principle, therefore, such restrictions could also be

said to be "in accordance with the law", within the meaning of Article

8 para. 2 (Art. 8-2) (Silver and Others Report, paras. 376-377 and 410-411).

 

73.     Similarly in the case of Costello v. the United Kingdom (Comm.

Report 18.10.85, paras. 39-40) the Commission was of the opinion that

the prohibition in management guidelines, prior to 1981, on

correspondence between prisoners was "a reasonable and foreseeable

consequence of the Home Secretary's Powers under Rule 33 (1) of the

Prison Rules 1964, ... given the possible security risks that could be

created by such correspondence", and, accordingly, was "in accordance

with the law" under Article 8 para. 2 (Art. 8-2) of the Convention.

 

74.     As regards the second element of Article 8 para. 2 (Art. 8-2),

"necessary in a democratic society", restrictions imposed on a prisoner's right

to respect for correspondence must be necessary and proportionate to meet a

legitimate governmental aim.  Thus a balance must be struck between the need to

rehabilitate a prisoner and the interests of public order and security

(aforementioned Silver and Others Report, paras. 286-290).

 

75.     As regards the substantive issues, the principal justification that

could be put forward for the censorship of prisoners' correspondence is the

prevention of disorder.  However, the Commission found in the case of Silver

and Others v. the United Kingdom that Rule 34 (8) of the Prison Rules 1964 was

an overbroad restriction on prisoners' correspondence which was not "necessary

in a democratic society .. for the prevention of disorder", within the meaning

of Article 8 para. 2 (Art. 8-2) of the Convention, because it took "no account

... of the status or otherwise of the addressee, the security risk posed by the

prisoner, the contents of the correspondence or its likely effect ..." (Silver

and Others Report, paras. 331-334).  Furthermore, in the case of Costello v.

the United Kingdom the Commission considered that the management guideline

prior to December 1981 generally prohibiting letters between inmates was an

overbroad restriction which found no justification in Article 8 para. 2 (Art.

8-2) of the Convention (Costello Report, para. 41).

 

76.     However, the Commission also found in the case of Silver and

Others v. the United Kingdom that the management guideline prohibiting

threats of violence in prisoners' correspondence was, in principle,

"necessary in a democratic society ... for the prevention of disorder

and crime, for the protection of health or morals or for the

protection of the rights and freedoms of others", within the meaning of Article

8 para. 2 (Art. 8-2) of the Convention.  In particular, it considered that the

"veiled" threats which one of the applicants in that case had addressed to his

mother were sufficient grounds for stopping the letters in question (Silver and

Others Report, paras. 413-415).

 

77.     Furthermore, as regards the censorship of prisoners'

correspondence which attempts to circumvent or evade prison rules, the

Commission found that this was an "obvious requirement of imprisonment

which may be deemed, in principle, to be justified 'for the prevention

of disorder' within the meaning of Article 8 para. 2" (Art. 8-2) of the

Convention (Silver and Others Report, para. 379).

 

78.     With regard to the censorship practice prior to December 1981

of stopping prisoners' letters of complaint where the complaint had

not first been ventilated through internal prison channels (the prior

ventilation rule), the Commission commented, inter alia, as follows on

the application of this rule to correspondence with Members of

Parliament:

 

        "The Commission considers that the ordinary and reasonable

        requirements of imprisonment justify a system of internal

        inquiry into prisoners' complaints about their treatment or

        conditions in prison.  The Commission does not consider,

        however, that the priority of such a system is so justified.

 

        It is an essential element of the United Kingdom

        parliamentary system that persons have unhindered access

        to their Member of Parliament.  This is particularly so

        for prisoners where the Home Secretary, in the exercise

        of his statutory executive discretion over prison

        administration, is generally only answerable to Parliament,

        rarely to the Courts...  The Commission is of the opinion

        that the need to provide an immediate remedy would be

        equally satisfied by a simultaneous ventilation rule..."

        (Silver and Others Report paras. 301-303).

 

79.     The Commission also commented as follows on the application of

the prior ventilation rule to correspondence with legal

representatives:

 

        "The Commission considers that it is fundamental in a

        democratic society that people may seek responsible legal

        advice on any subject in order to protect or enforce

        their rights or simply to be reasonably informed.

 

        The Commission ... is unable to discern how the considerations

        put forward by the Government could be said to justify the

        priority of the internal complaints system.  This is

        particularly so as the facts of the present case disclose

        unacceptable delays in the internal inquiry system....

        Yet it is conceivable that in many instances prompt legal

        advice may be required, so that, for example, vital evidence

        can be collected or retained.

 

        The Commission finds that the prohibition on letters to legal

        representatives which contain complaints about prison

        treatment, the prior ventilation rule  not having been

        respected, has not been shown to be proportionate to the

        purported aims.  It has not been shown, therefore, to be a

        restriction which is 'necessary in a democratic society ...

        for the prevention of disorder' within the meaning of Article

        8 para. 2" (Art. 8-2) (Silver and Others Report paras. 312 - 314).

 

80.     In respect of the sanction of stopping letters in breach of

the requirement laid down in Rule 34 (8) of the Prison Rules 1964 that

prisoners must seek the prior authorisation of the Home Secretary

before writing on any legal matters, the Commission noted as follows:

 

        "The Commission notes the Government's submission that the

        prior leave requirement enables the prison authorities to

        be informed of the legal matters with which prisoners are

        involved.  However, even assuming that there is a legitimate

        need for such information, the Commission considers that it

        does not justify the sanction of stopping a letter rather than

        simply referring it to the prison governor for information.

        Such censorship appears to the Commission to be

        disproportionate to the aim sought.

 

        The Commission is of the opinion, therefore, that the

        prohibition on letters dealing with legal matters without

        the prior leave of the Secretary of State cannot be said to

        be a restriction which is 'necessary in a democratic society

         ... for the prevention of disorder' within the meaning of

        Article 8 para. 2" (Art. 8-2) (Silver and Others Report

paras. 340-341).

 

81.     As regards the general question of prisoners putting their

complaints in their correspondence the Commission took the following

considerations into account:

 

        "The Commission acknowledges that it is a legitimate desire

        of the Government to support the difficult work of prison

        staff.  However it is also to be recognised that there is

        a basic human need to express thoughts and feelings,

        including complaints about real or imagined hardships.

 

        This need is particularly acute in prison, as prisoners

        have little choice of social contacts, hence the importance

        of having access to the outside world by correspondence"

        (Silver and Others Report para. 322).

 

82.     The opinions of the Commission in the case of Silver and

Others v. the United Kingdom were not substantially contested by the

respondent Government before the European Court of Human Rights, which

upheld the majority of the Commission's conclusions, including those

outlined above.  Particular note is to be taken of the Court's

conclusion that, as Rule 34 (8) of the Prison Rules generally

prohibits prisoners' correspondence other than to relatives and

friends, further restrictions on addressees contained in the

management guidelines were foreseeable and must be deemed to be "in

accordance with the law", within the meaning of Article 8 para. 2 (Art. 8-2) of

the Convention (Eur.  Court H.R., judgment of Silver and Others of 25 March

1983, Series A No. 61 paras. 91, 93, 95 and 99).  Moreover, the aforementioned

opinion of the Commission in the case of Costello v. the United Kingdom (paras.

73 and 75 above) was upheld by the Committee of Ministers (Resolution DH (87)

3).

 

           bb) Matters outside the scope of the previous

               case-law of the Convention organs

 

83.     The following guidelines and practices applied to the

applicant's correspondence have not been examined by the Convention

organs previously:

 

        - the prohibition (prior to December 1981) on the seeking of

          pen friends;

 

        - the implicit prohibition on abusing extra letter facilities

          for legal matters;

 

        - the amended management guideline (post December 1981)

          imposing a simultaneous ventilation rule on prisoners'

          letters of complaint;

 

        - the amended management guideline (post December 1981)

          permitting correspondence between inmates, subject to the

          approval of the prison governors concerned;

 

        - the management guideline prohibiting obscure or coded

          messages which are not readily intelligible or decipherable.

 

84.     The Commission is of the view that its approach to the

examination of the compatibility with the Convention of these

restrictions must be the same as that adopted in the case of Silver

and Others v. the United Kingdom, given the general considerations

outlined above (paras. 70, 71 and 74).

 

85.     However, before dealing with the specific restrictions, the

Commission must first examine whether the management guidelines on

censorship in Standing Order 5, which were made public as of 1

December 1981, satisfy the requirements of the term "in accordance

with the law", within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

 

86.     At the time of the previous prisoners' correspondence cases

before the Commission, the relevant management guidelines were not

notified to prisoners.  They are also generally acknowledged as not

having the force of law.  Therefore, only those guidelines which could

reasonably have been deduced from the Prison Rules 1964 (which may be

considered law) were deemed to satisfy the accessibility and

foreseeability requirements of the rule of law.  Whilst still not

having the force of law since its publication on 1 December 1981,

Standing Order 5 on the censorship of prisoners' correspondence is now

public and available to prisoners.  In the Commission's opinion, the

new censorship practices, contained in that Order and grounded in the

legal authority of Rules 33 and 34 of the Prison Rules 1964, may now

be said, in principle, to satisfy the requirements of the rule of law

embodied in the phrase "in accordance with the law" contained in

Article 8 para. 2 (Art. 8-2) of the Convention.

 

87.     The Commission will now examine the apparent justification for

the restrictions applied in the present case which did not arise in

the case of Silver and Others.

 

        (i) The prohibition (prior to December 1981) on the seeking

            of pen friends

 

88.     The Commission observes the general prohibition, in force when

the applicant's letter 1 was written, on prisoners' correspondence

with persons unknown to them prior to their imprisonment and on any

attempt to seek pen friends.  There was no specific provision in the

Prison Rules 1964 for such a restriction.  The prohibition was

contained in the unpublished Standing Order 5 A 23 (3).

 

89.     The Commission recalls the decision of the Court in the case

of Silver and Others that Rule 34 (8) of the Prison Rules 1964 must be

seen as a general prohibition on prisoners' correspondence other than

to relatives and friends, and that further restrictions on addressees

in management guidelines were a foreseeable consequence of that Rule.

Such restrictions were, therefore, "in accordance with the law" within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention (Eur.  Court H.R.,

judgment of Silver and Others of 25 March 1983, Series A No. 61 para. 93).

Accordingly, the Commission concludes that the prohibition contained in

Standing Order 5 A 23 (3) was "in accordance with the law" under Article 8

para. 2 (Art. 8-2) of the Convention.

 

90.     The Commission also refers to its conclusions in the case of

Silver and Others, upheld by the Court, that the "friends and

relatives" Rule, i.e. the aforementioned Rule 34 (8), was an overbroad

restriction which found no justification in the exception "prevention of

disorder" contained in Article 8 para. 2 (Art. 8-2) of the Convention.  Given

the failure of Standing Order 5 A 23 (3) to take account of the status or

otherwise of the potential pen friend or the security risk posed by the

prisoner, the importance for prisoners to have contacts with the outside world

(cf. paras. 75 and 81 above) and the absence of any argument on the merits from

the Government in support of the restriction, the Commission is of the view

that blanket prohibitions on prisoners' correspondence with persons unknown to

them prior to their imprisonment and on attempts to seek pen friends have not

been shown to have been "necessary in a democratic society ... for the

prevention of disorder", within the meaning of Article 8 para. 2 (Art. 8-2) of

the Convention.

 

91.     The Commission notes, with approval, the abolition of this

restriction with the reform of prison censorship practices in December

1981.

 

        (ii) The implicit prohibition on abusing extra letter

             facilities for legal matters

 

92.     The Commission notes that there is no specific prohibition in

the Prison Rules 1964 or the management guidelines at the relevant

time prohibiting prisoners' abuse of legal letter facilities.

However, the Commission finds that the legitimate considerations

relating to the circumvention or evasion of regulations contained in

Standing Order 5 B 40 are relevant to such abuses (cf. paras. 39, 72

and 77 above).  Thus the Commission is of the opinion that the

censorship of correspondence which abuses extra letter facilities for

legal matters finds implicit authority in the Home Secretary's powers

under Rule 33 (1) of the Prison Rules 1964 to impose restrictions

"with a view to securing good order and discipline".  Moreover the

control of such abuses is an obvious requirement of imprisonment.  In

principle, therefore, the censorship of prisoners' correspondence

which abuses legal letter facilities is not only "in accordance with

the law", but is also justified "for the prevention of disorder",

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

 

        (iii) The simultaneous ventilation rule

 

93.     Prisoners are prevented by Standing Order 5 B 34j from raising

certain types of complaints in their correspondence, unless those

complaints have also been notified to the prison administration for

internal investigation (paras. 41-43 and 58-67 above).  This

restriction is known as the simultaneous ventilation rule and may be

said to be based on the Home Secretary's powers under Rules 33 (1) and

34 (8) of the Prison Rules 1964 (paras. 36, 72 and 82 above).

Accordingly the Commission concludes that interference based on the

simultaneous ventilation rule contained in Standing Order 5 B 34j was

"in accordance with the law", within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

 

94.     Whilst recognising the importance of a system of internal

inquiry into prisoners' complaints about their treatment or conditions

in prison, the Commission confirms its opinion in the case of Silver

and Others that prisoners' correspondence with lawyers is of a

privileged nature and, in principle, should be unhindered (paras.

79-81 above).  The Commission notes that this has been recognised by

the respondent Government in the abolition of the simultaneous

ventilation restriction on correspondence to lawyers (para. 41 above).

Accordingly, the Commission concludes that the restrictions contained

in Standing Order 5 B 34j as regards general correspondence may in certain

circumstances satisfy the requirements of Article 8 para. 2 (Art. 8-2) of the

Convention, being "necessary in a democratic society ... for the prevention of

disorder".  However, as regards correspondence to lawyers, the Commission finds

that to stop prisoners' letters because they contain complaints which have not

been raised through internal prison channels is a disproportionate sanction.

The Government have not provided any convincing reason why,instead, a photocopy

of the offending letter could not be made for the information of the prison

governor and then the letter sent out (cf. para. 80 above). Accordingly the

Commission concludes that the application of Standing

 

Order 5 B 34j by stopping correspondence of this kind has not been

shown to be "necessary in a democratic society ... for the prevention

of disorder", within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

 

        (iv) Correspondence between inmates (post December 1981)

 

95.     Standing Order 5 B 26 generally permits correspondence between

prisoners, subject to the approval of the prison governors concerned,

who may only prohibit such correspondence in the interests of

rehabilitation, security, good order or discipline (para. 45 above).

The Commission considers that this Order may be said reasonably to

flow from the Home Secretary's powers under Rule 33 (1) of the Prison

Rules 1964, given the possible security risks that could be created by

such correspondence, and, accordingly, is "in accordance with the law" under

Article 8 para. 2 (Art. 8-2) of the Convention (para. 73 above).  Moreover,

unlike the severe restrictions on correspondence between inmates prior to

December 1981 (para. 75 above), the Commission considers that the present

Standing Order 5 B 26, in principle, strikes the necessary balance between

prisoners' rehabilitation and social needs and "the prevention of disorder",

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

 

        (v) The prohibition on obscure or coded messages

 

96.     The Commission notes that Standing Order 5 B 34e prohibits

prisoners' correspondence containing "obscure or coded messages which

are not readily intelligible or decipherable" (para. 46 above).  The

Commission is of the opinion that such a prohibition flows clearly

from the Home Secretary's powers under Rule 33 (1) of the Prison Rules

1964 and is an obvious requirement of imprisonment in order to

forestall possible escape plans or other matters threatening security,

good order or discipline in prison.  It may therefore be said to be

"in accordance with the law and ... necessary in a democratic society

... for the prevention of disorder or crime", within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention.

 

97.     Finally, the Commission has examined the general considerations

relating to postal facilities and prisoners' right to respect for

correspondence.  In the Commission's opinion Article 8 (Art. 8) of the

Convention envisages not only the negative obligation not to interfere

unjustifiably with correspondence by stopping prisoners' letters, but

also the positive obligation of providing reasonable facilities for

the effective flow of authorised correspondence.  Thus, if it is

the prison authorities who take on the entire responsibility for

posting outgoing letters and receiving incoming mail, they should

inform the prisoner concerned of any problem arising or defect in the

postal service.  Failure to do so may constitute an interference with

prisoners' Article 8 (Art. 8) right to respect for correspondence.

 

        b) As regards Article 6 para. 1 (Art. 6-1) of the Convention

 

98.     The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

reads as follows:

 

        "In the determination of his civil rights and

        obligations or of any criminal charge against him,

        everyone is entitled to a fair and public hearing

 

        within a reasonable time by an independent and

        impartial tribunal established by law ...."

 

99.     In the Golder case the Court held that this provision embodies

"the right to a court", an aspect of which is the right of access to

court and to legal advice (Eur.  Court H.R., Golder judgment of

21 February 1975, Series A No. 19 paras. 36 and 40).  Thus, in the

prisoners' correspondence case of Silver and Others v. the United

Kingdom, the refusal by prison authorities to allow Mr.  Silver to seek

legal advice concerning prospective civil proceedings was deemed, by

both the Commission and the Court, to be a breach of Article 6 para. 1

(Art. 6-1) of the Convention (Comm.  Report 11.10.80, Eur.  Court H.R.,

Series B No. 51 paras. 429-434, Eur.  Court H.R., judgment of Silver

and Others of 25 March 1983, Series A No. 61, paras. 80-82).

 

C.      The present case

 

        a) As regards Article 8 (Art. 8) of the Convention

 

100.    The facts of the present application disclose that 12 of the

applicant's letters were stopped by prison authorities and that the

prison administration failed to inform the applicant that another

letter had been returned by the Post Office, because it had been

inadequately addressed.  Thus the Commission finds that there was an

interference, in 13 cases, with the applicant's right to respect for

correspondence ensured by Article 8 (Art. 8) of the Convention.  The question

remains, however, whether the conditions justifying such interference,

and which are laid down in the second paragraph of that provision,

have been fulfilled.

 

           aa) Letter 1 (para. 20 above)

 

101.    This letter, concerning a possible pen friend, was stopped

under unpublished Standing Order 5 A 23 (3), which restriction the

Commission has found not to be "necessary in a democratic society ...

for the prevention of disorder" (paras. 88-91 above).  This was

apparently recognised by the Government in the abolition and exclusion

of the restriction from the revised censorship regulations issued on

1 December 1981.  However, the censorship reforms were effected after

the stopping of the applicant's letter; the Commission is, therefore,

obliged to express its opinion on the interference in question.  In

the light of the general considerations above (para. 90) and the

absence of submissions on the merits of this particular censorship

incident from the respondent Government, the Commission is unable to

discern any relevant or sufficient reason which might have justified

the stopping of the applicant's letter 1.  Accordingly the Commission

is of the opinion that the stopping of letter 1 was not "necessary in

a democratic society ... for the prevention of disorder", within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

 

        Conclusion

 

102.    The Commission concludes, by 15 votes to one, that there has

been a violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letter 1.

 

            bb) Letters 2 and 5 (paras. 21 and 24 above)

 

103.    The Government concede an error in the failure by the

administration at H.M. Prison Hull to post the applicant's letter 2

and have offered no explanation for the stopping of letter 5.  In

these circumstances the Commission finds no justification for the

interference and, accordingly, is of the opinion that the stopping of

the letters was not "necessary in a democratic society ... for the

prevention of disorder", within the meaning of Article 8 para. 2 (Art. 8-2) of

the Convention.

 

        Conclusion

 

104.    The Commission concludes, by 15 votes to one, that there has

been a violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letters 2 and 5.

 

            cc) Letters 3, 6 and 9 (paras. 22, 25 and 28 above)

 

105.    The three letters were stopped for abusing facilities provided

for furthering prisoners' legal affairs (Standing Order 5 B 11).  The

Commission has examined the applicant's letters and notes that,

although two of them contain minor descriptive references to certain

legal matters, they were not primarily intended to give instructions

on the progress of legal business.  In the Commission's view they

could, therefore, reasonably be considered to be "domestic" rather

than "legal" letters and an abuse of the facilities provided for the

latter purpose.  In these circumstances and in view of the general

considerations above (paras. 72, 77 and 92) and the absence of

pertinent observations on the merits from the applicant, the

Commission is of the opinion that the stopping of the applicant's

letters 3, 6 and 9 was "necessary in a democratic society ... for the

prevention of disorder", within the meaning of Article 8 para. 2 (Art. 8-2) of

the Convention.

 

        Conclusion

 

106.    The Commission concludes, by 15 votes with one abstention,

that there has been no violation of Article 8 (Art. 8) of the Convention in

respect of the applicant's letters 3, 6 and 9.

 

           dd) Letter 4 (para. 23 above)

 

107.    There is no specific record of the reason for censoring this

letter addressed to the applicant's solicitor, but the Government have

suggested that it may have been stopped for failing to observe the

simultaneous ventilation rule in Standing Order 5 B 34j.  The

Commission has examined the letter and finds no clear reference in it

to a serious complaint which would require investigation by the prison

authorities.  The Commission also refers to its findings above (para.

94) that the general application of Standing Order 5 B 34j to

correspondence with lawyers has not been shown to be necessary in

terms of Article 8 para. 2 (Art. 8-2) of the Convention.  This is reflected in

the abolition of the restriction on such correspondence (para. 41

above).  In the light of these circumstances, the Commission is of the

opinion that the stopping of letter 4 was not "necessary in a

democratic society ... for the prevention of disorder", within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

 

        Conclusion

 

108.    The Commission concludes, by a unanimous vote, that there has

been a violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letter 4.

 

           ee) Letter 7 (para. 26 above)

 

109.    This letter to a Member of Parliament was stopped because the

applicant had failed to observe the simultaneous ventilation rule

(Standing Order 5 B 34j) about his allegations of serious

ill-treatment of other prisoners by prison officers.  The Commission

recognises that the prison authorities should have an early

opportunity to investigate complaints of serious ill-treatment made to

Members of Parliament, because an inquiry instigated by a Member of

Parliament will anyway be channelled through the Home Secretary, who

is the head of, and has parliamentary responsibility for the prison

service.   In these circumstances, the Commission is of the opinion

that the stopping of letter 7 was "necessary in a democratic society

... for the prevention of disorder", within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

 

        Conclusion

 

110.    The Commission concludes, by nine votes to four, that there

has been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letter 7.

 

           ff) Letter 8 (para. 27 above)

 

111.    The letter was stopped for making the same complaints as

letter 7 to the police without having raised them through internal

prison channels as required by the simultaneous ventilation rule

(Standing Order 5 B 34j).  The Commission recognises that prison

authorities should have the same opportunity as the police to

investigate serious complaints, and that the circumstances surrounding

the censorship of this letter justified the application of Standing

Order 5 B 34j.  Accordingly the Commission is of the opinion that the

stopping of letter 8 was "necessary in a democratic society ... for

the prevention of disorder", within the meaning of Article 8 para. 2

(art. 8-2) of the Convention.

 

        Conclusion

 

112.    The Commission concludes, by 12 votes to one, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letter 8.

 

           gg) Letter 10 (para. 29 above)

 

113.    The applicant was not informed that this letter had been

returned by the Post Office.  He was, therefore, not given an

opportunity to rectify the inadequate address which he had written on

the envelope.  The Commission finds no justification for the prison

authorities' failure to inform the applicant of the return of his

letter and, indeed, the Government have not submitted any argument on

the merits of the incident.  In these circumstances and in view of the

general considerations above (para. 97), the Commission is of the

 

opinion that this omission constituted an interference with the right

to respect for correspondence which was not "necessary in a democratic

society ... for the prevention of disorder", within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention.

 

        Conclusion

 

114.    The Commission concludes, by 13 votes to one, with two

abstentions, that there has been a violation of Article 8 (Art. 8) of the

Convention in respect of the applicant's letter 10.

 

           hh) Letters 11 and 12 (paras. 30 and 31 above)

 

115.    These two letters were stopped for containing threats towards

the applicant's trial judge, contrary to Standing Order 5 B 34f.  The

Commission has examined the applicant's letters and finds that they

did contain threats.  In these circumstances, and in view of the

general considerations above (paras. 72 and 76) the Commission is of

the opinion that the stopping of the applicant's letters 11 and 12 was

"necessary in a democratic society ... 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", within the meaning

of Article 8 para. 2 (Art. 8-2) of the Convention.

 

        Conclusion

 

116.    The Commission concludes, by a unanimous vote, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letters 11 and 12.

 

           ii) Letter 13 (para. 32 above)

 

117.    Although the facts concerning the stopping of this letter were

not entirely clear in the prison records, the Government have

suggested that it may reasonably have been censored because it was

unauthorised correspondence with another inmate and was in a cryptic,

obscure style, contrary to Standing Orders 5 B 26 and 5 B 34e.  The

Commission has examined the letter and finds that it may reasonably

have been stopped for its unintelligible contents, and, therefore, may

reasonably have been deemed to have posed a security threat as it was

addressed to another prisoner.  In these circumstances, and in view of

the general considerations above (paras. 73, 75, 95 and 96), the

Commission is of the opinion that the stopping of the applicant's

letter 13 was "necessary in a democratic society ... for the

prevention of disorder or crime", within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

 

        Conclusion

 

118.    The Commission concludes, by 15 votes with one abstention,

that there has been no violation of Article 8 (Art. 8) of the Convention in

respect of the applicant's letter 13.

 

        b) As regards Article 6 para. 1 (Art. 6-1) of the Convention

 

           aa) Letters 4, 8, 10, 11 and 12

 

119.    The applicant claims that the stopping of his letters 4, 8,

10, 11 and 12 violated Article 6 para. 1 (Art. 6-1) of the Convention.

 

120.    Letter 4 (para. 23 above) was addressed to a solicitor and

requested a visit from him in order to obtain advice about alleged

harassment by the prison authorities.  Letter 8 (para. 27 above) was

addressed to the police and concerned the alleged ill-treatment of

other prisoners about which the applicant claimed to have information.

Letter 10 (para. 29 above) was addressed to the General Medical

Council complaining about a member of the medical profession for which

the Council has disciplinary responsibility.  Letters 11 and 12 (paras.

30 and 31 above) were to the applicant's trial judge concerning

matters which had allegedly arisen at his trial.  The Commission finds

that none of these letters could be said to have directly related to

civil proceedings, to which the applicant may  have wished to become a

party, or to have concerned criminal proceedings against the applicant

himself which had not yet been concluded.  They therefore concerned

neither the determination of the applicant's civil rights and

obligations nor the determination of any criminal charge against him.

In these circumstances the Commission is of the opinion that the

stopping of the five letters did not deny him access to court, as

ensured by Article 6 para. 1 (Art. 6-1) of the Convention.

 

           bb) Conclusion

 

121.    The Commission concludes, by a unanimous vote, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in the

present case.

 

D.      Recapitulation

 

122.    The Commission concludes, by 15 votes to one, that there has

been a violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letter 1 (para. 102 above).

 

123.    The Commission concludes, by 15 votes to one, that there has

been a violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letters 2 and 5 (para. 104 above).

 

124.    The Commission concludes, by 15 votes with one abstention,

that there has been no violation of Article 8 (Art. 8) of the Convention in

respect of the applicant's letters 3, 6 and 9 (para. 106 above).

 

125.    The Commission concludes, by a unanimous vote, that there has

been a violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letter 4 (para. 108 above).

 

126.    The Commission concludes, by nine votes to four, that there has been no

violation of Article 8 (Art. 8) of the Convention in respect of the applicant's

letter 7 (para. 110 above).

 

127.    The Commission concludes, by 12 votes to one, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letter 8 (para. 112 above).

 

128.    The Commission concludes, by 13 votes to one, with two

abstentions, that there has been a violation of Article 8 (Art. 8) of the

Convention in respect of the applicant's letter 10 (para. 114 above).

 

129.    The Commission concludes, by a unanimous vote, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's letters 11 and 12 (para. 116 above).

 

130.    The Commission concludes, by 15 votes with one abstention,

that there has been no violation of Article 8 (Art. 8) of the Convention in

respect of the applicant's letter 13 (para. 118 above).

 

131.    The Commission concludes, by a unanimous vote, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in the

present case (para. 121 above).

 

 

    Secretary to the Commission         President of the Commission

 

 

 

           (H.C. KRÜGER)                      (C.A. NØRGAARD)

 

 

 

 

Dissenting opinion of MM. Vandenberghe and Rozakis

 

 

 

 

 

 

        We disagree with the opinion of the majority of the Commission

as regards the application of a simultaneous ventilation rule to

prisoners' correspondence to Members of Parliament.  We would refer to

the crucial role of Members of Parliament described at paragraphs 301

to 303 in the Commission's Silver Report (11.10.80), in particular the

following passage:

 

        "It is an essential element of the United Kingdom

        parliamentary system that persons have unhindered

        access to their Member of Parliament.  This is

        particularly so for prisoners where the Home

        Secretary, in the exercise of his statutory

        executive discretion over prison administration,

        is generally only answerable to Parliament,

        rarely to the Courts.  Moreover, in the United

        Kingdom access to the Parliamentary Commissioner,

        the Ombudsman, is only through a willing Member

        of Parliament ..."

 

        We consider that the exceptional considerations identified by

the majority of the Commission concerning prisoners' letters to their

lawyers (paragraph 94 of the present Report) are of equal relevance to

prisoners' letters to their Members of Parliament.  Hence we are of

the opinion that the stopping of the applicant's letter 7 was not

"necessary in a democratic society ... for the prevention of

disorder", within the meaning of Article 8 para. 2 of the Convention.

We conclude therefore that there was a violation of Article 8 of the

Convention in respect of this letter.

APPENDIX I

 

 

History of the proceedings before the Commission

 

 

 

Date                    Item

 

----------------------------------------------------------------

 

27 March 1985           Introduction of application

 

2 May 1985             Registration of application

 

 

Examination of admissibility

 

3 June 1985            Rapporteur's request for information

                        from Government

 

11 October 1985         Submission of information by Government

 

30 October and          Comments by applicant on information

19 November 1985        submitted by Government

 

5 May 1986             Commission's decision to give notice of

                        the application to the respondent Government

                        and to invite them to submit written

                        observations on admissibility and merits

 

1 October 1986         Submission of Government's observations

 

27 October 1986         Submission of applicant's observations

                        in reply

 

4 March 1987           Commission's deliberations and decision to

                        declare application partially admissible

 

 

Examination of the merits

 

8 April 1987           Parties invited to submit written

                        conclusions on merits

 

28 April 1987           Government renounced opportunity to submit

                        further observations

 

21 June 1987            Applicant renounced opportunity to submit

                        further observations

 

4 March 1988           Commission's further deliberations on the

                        merits, and certain final votes.  Decision to

                        invite parties to submit written observations

                        on the simultaneous ventilation rule and its

                        application to the applicant's letters 4, 7

                        and 8

 

 

 

 

Date                    Item

 

----------------------------------------------------------------

 

29 April 1988           Government's observations on the merits of

                        the simultaneous ventilation rule

 

22 July 1988            Applicant's reply

 

6 December 1988        Commission's further deliberations on the

                        merits and remaining final votes

 

15 December 1988        Adoption of text of Report

 

 

 

 

Full & Egal Universal Law Academy