AS TO THE ADMISSIBILITY OF
Application No. 20075/92
by Mark LEECH
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 31 August 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 March 1992 by
Mark LEECH against the United Kingdom and registered on 3 June 1992
under file No 20075/92;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
4 May 1993 and the observations in reply submitted by the
applicant on 15 July 1993;
- responses to the Commission's questions to the parties submitted
by the Government on 4 February 1994 and by the applicant on
30 March 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1957. He is detained
at H.M. Prison Glenochil, Scotland. Before the Commission he is
represented by Mrs. D. Haigh of Messrs. Shepherd and Wedderburn WS,
solicitors practising in Edinburgh.
The particular circumstance of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 7 August 1987 at Inverness High Court, Scotland and on
25 November 1988 at Reading Crown Court, England respectively the
applicant was convicted of a series of offenses of theft, fraud,
housebreaking, criminal damage, public mischief, forgery and arson. He
was sentenced to a total of 6 years` imprisonment. On 28 November 1992
at Kilmarnock High Court, Scotland he was convicted of assault and
robbery and was sentenced to 7 years` further imprisonment (with effect
from 28 November 1991). He has been variously detained in prisons in
England and Scotland.
Facts relating to complaints arising in England
On 7 August 1988 the applicant complained via his Member of
Parliament about a letter to his legal adviser which had been delayed.
On 9 September 1988 the Government apologised for the delay.
On 23 February 1989 the applicant lodged a complaint concerning
opening of his legal correspondence in his absence. The complaint
related to a letter from his legal adviser. On 24 May 1989 the
Secretary of State apologised declaring that this was an error on the
part of the prison staff.
On 24 July 1989 the applicant lodged a further complaint about
the delay in posting a letter to his legal adviser. However, it was
explained to him that this was caused by his not having marked the
envelope as legally privileged. It was returned to him marked
accordingly and posted unopened.
In 1990 the following specific letters to the applicant from his
solicitor were opened in English prisons without him being present:
7 July 1990
8 July 1990
17 August 1990
31 August 1990
5 September 1990
10 September 1990
11 September 1990
14 September 1990
5 November 1990
The applicant instituted judicial review proceedings and claimed
that the Prison Rules relating to correspondence with legal advisers
were ultra vires. On 22 October 1991 the application was dismissed by
the High Court. Mr. Justice Webster held that "...(any) reasonable
Secretary of State...would decide that the restriction in question was
reasonably necessary in the interests of security and I accordingly
dismiss the application." The applicant appealed.
On 19 May 1993 the Court of Appeal allowed the applicant`s
appeal. It declared that Rule 33(2) and 33(3) of the Prison Rules were
ultra vires Section 47(1) of the 1952 Prison Act on the ground that
they permitted the reading and stopping of confidential letters between
a prisoner and a solicitor on wider grounds than merely to ascertain
whether they were in truth bona fide communications between a solicitor
and a client.
Facts relating to complaints arising in Scotland
In or about 1990 the applicant instituted civil proceedings in
Scotland against the Secretary of State. He challenged the relevant
Scottish Prison Rules and claimed in general, without specifying any
particular letters, that the prison authorities had no right to peruse
and/or stop legal correspondence.
On 26 October 1990 his petition was dismissed by the Lord
Ordinary, Lord Caplan. On 13 December 1991 his appeal to the Court of
Session was refused.
On 5 February 1992 the applicant was advised by Senior Counsel:
"Although I consider that a good argument could be put before the House
of Lords, I am not able to say that such an argument would have
reasonable prospects of success or have a more than 50% chance of
winning..."
On 13 August 1992 the applicant lodged a petition with the
Secretary of State for Scotland complaining about the opening of his
legal correspondence without him being present.
On 30 October 1992 the Secretary of State acknowledged receipt
of the applicant`s complaint.
From October 1992 onwards the applicant`s legal correspondence
remained subject to interference, his letters to and from his legal
advisers often being opened out of his presence and/or delayed.
Relevant domestic law and practice
England
Section 47(1) of the Prison Act 1952 reads as follows:
"The Secretary of State may make rules for the regulation and
management of prisons ... and for the classification, treatment,
employment, discipline and control of persons required to be
detained therein."
Rules 33 of the Prison (Amendment) Rules 1989 reads as follows:
"(2) Except as provided by statute or these Rules,a prisoner
shall not be permitted to communicate with any outside person,
or that person with him, without the leave of the Secretary of
State.
(3) Except as provided by these Rules, every letter or
communication to or from a prisoner may be read or examined by
the governor or an officer deputed by him, and the governor may,
at his discretion, stop any letter or communication on the ground
that its contents are objectionable or that it is of inordinate
length."
Rule 37A(1) provides:
"A prisoner who is a party to any legal proceedings may
correspond with his legal adviser in connection with the
proceedings and unless the governor has reason to suppose that
any such correspondence contains matter not relating to the
proceedings it shall not be read or stopped under Rule 33(3) on
these Rules."
Until the judgment of the Court of Appeal of 19 May 1993 letters
to and from solicitors relating to contemplated legal proceedings could
therefore be read and/or stopped by the prison authorities.
Scotland
Section 39(1) of the Prison (Scotland) Act 1989 states:
"The Secretary of State may make rules for the regulation and
management of prisons ... and for the classification, treatment,
employment, discipline and control of persons required to be
detained therein."
Rule 74(4) of the Prison (Scotland) Rules 1952 reads as follows:
"Subject to the provisions of Rule 50(4) every letter to or from
a prisoner shall be read by the Governor or by an officer deputed
by him for that purpose and it shall be within the discretion of
the Governor to stop any letter if he considers that the contents
are objectionable."
On 12 October 1992 changes to the regulations concerning legal
correspondence entered into force. Standing Orders Amendment Circular
6/92 states that prisoners` legal correspondence may only be opened
if there is a reason to believe that it contains an illicit enclosure
not detected by the normal means, but even such a letter should only
be opened but not read and it must be opened in the prisoner`s
presence. Legal correspondence may be read in exceptional circumstance
if the authorities have reasonable cause to believe that the privilege
is being abused. On 1 October 1993 an amended Rule 74 (4) of the
Prison Rules came into force. It provides that correspondence with a
legal adviser may only be opened if the Governor or an officer has
cause to believe that it contains a prohibited article, and the
prisoner is present. A letter may only be read in exceptional
circumstance where the Governor has reasonable cause to believe that
the contents of the letter endanger the security of the prison or the
safety of any person, or relate to a criminal activity.
COMPLAINTS
The applicant complains of interference with his correspondence
with his solicitor and invokes Article 8 of the Convention. He
complains that since 1987 his correspondence with his solicitors in
connection with pending and contemplated litigation has been delayed
and/or opened without his being present. The applicant has referred
to the seven specific letters listed above, but mainly refers to
correspondence generally.
The applicant also complains of a violation of Article 13 of the
Convention, alleging the lack of domestic remedies concerning the above
complaint.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 March 1992 and registered on
3 June 1992.
On 14 October 1992 the Commission decided to communicate the
application to the respondent Government and to request them to submit
their written observations on admissibility and merits.
The Government`s observations were submitted on 4 May 1993. On
15 July 1993 the applicant submitted his observations in reply.
On 11 May 1993 the Commission decided to grant the applicant
legal aid.
On 11 January 1994 the Commission decided to put further
questions to the parties. The Government submitted their response on
4 February 1994 and the applicant submitted his on 30 March 1994.
THE LAW
The English complaints
1. The applicant complains under Article 8 (Art. 8) of the
Convention that the prison authorities opened his legal correspondence
without his being present.
Article 8 (Art. 8) of the Convention 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."
The Commission notes that the applicant instituted judicial
review proceedings in order to challenge the prison rules relating to
legal correspondence. On 19 May 1993 the Court of Appeal, declared
ultra vires Rule 33 (2) and (3) of the Prison Rules, which had provided
the legal basis for the interferences with the applicant's legal
correspondence, so far as the Rule purported to apply to correspondence
between prisoners and their legal advisers.
It follows that the applicant can no longer be considered a
victim of the above interferences with his legal correspondence in
English prisons and that this part of the application must be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
2. The applicant also complains about the lack of an effective
remedy and invokes Article 13 (Art. 13) of the Convention.
Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission finds that, in connection with the complaints
concerning the interferences with the applicant's correspondence whilst
he was in prison in England, the applicant did in fact have an
effective remedy in that on 19 May 1993 the Court of Appeal allowed his
appeal.
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
The Scottish complaints
3. The applicant complains about interferences with his legal
correspondence in respect of Scotland prior to 12 October 1992, again
invoking Article 8 (Art. 8) of the Convention.
The Government accept that between 7 August 1987 and
12 October 1992 the prison authorities in Scotland may have opened the
applicant's legal correspondence. However, they have no specific
records of such information, and state that they cannot confirm or deny
that such letters were interfered with, nor can they give reasons for
any such interference. In their response to the Commission's questions
of 11 January 1994 the Government, for the first time, submitted that
the applicant had failed to exhaust domestic remedies in that he had
not appealed to the House of Lords against the Court of Session's
decision of 13 December 1991. They pointed out that he could have
appealed to the House of Lords within three months of the decision of
13 December 1991, and considered that he thereby lost the opportunity
that the House of Lords might have taken a similar approach to that
subsequently taken by the Court of Appeal in the applicant's English
application for judicial review. Alternatively, he could have applied
for leave to appeal to the House of Lords out of time once he knew the
outcome of his English application, that is, after 19 May 1993.
In reply to the Government's arguments on non-exhaustion, the
applicant considers that the rule on exhaustion of domestic remedies
does not require an applicant to the Commission to "go through every
tier of appeal to the Highest Court in the UK ...".
The Commission recalls that mere doubts, expressed by counsel,
as to the prospects of success of a remedy, do not form a sufficient
basis for absolving an applicant from the strict requirement of
exhaustion of domestic remedies under Article 26 (Art. 26) (see, also
in the context of an appeal to the House of Lords, No. 10789/84,
Dec. 11.10.84, D.R. 40, p. 298). Moreover, the Commission notes that
in the applicant's own application for judicial review before the
English courts, the Court of Appeal quashed the relevant part of the
English equivalent of the Scottish Rule 74 (4). It cannot, therefore,
be said in the context of this type of complaint that judicial review
is inadequate - whether by reason of the scope of consideration of
facts or by reason of the remedies available - to amount to a remedy
within the meaning of Article 26 (Art. 26). It has not been submitted
that the remedy of judicial review in Scotland is in any way narrower
than in England.
The Commission considers, therefore, that the applicant has not
exhausted the remedies available to him under Scottish law. Moreover,
an examination of the case does not disclose the existence of any
special circumstances which might have absolved him, according to the
generally recognised rules of international law, from exhausting the
domestic remedies at his disposal.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies in this respect, and this
part of the application must therefore be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
4. The applicant also alleges a violation of Article 13 (Art. 13)
of the Convention in connection with the interference with his legal
correspondence in Scotland prior to 12 October 1992.
The Government submit that the remedy open to and taken by the
applicant in this respect complied with Article 13 (Art. 13). In
particular, they point out that Article 13 (Art. 13) does not guarantee
an outcome favourable to an applicant.
In the light of the Commission's finding that the applicant
failed to exhaust domestic remedies in connection with his complaint
of interference with his legal correspondence in Scotland, the
Commission finds that the complaint under Article 13 (Art. 13) is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant makes complaints concerning interference with his
legal correspondence in the period subsequent to 12 October 1992,
that is, the date when the Amendment to the Standing Orders entered
into force.
However, the Commission is again not required to decide whether
or not these complaints disclose any appearance of a violation of
Article 8 (Art. 8) of the Convention. It notes that the applicant has
failed to challenge the provisions of the Amendment Circular before the
Scottish courts, either by way of the type of challenge he mounted in
1990 against the rules as such, or by way of a challenge to a specific
incident in which a letter to or from a legal adviser was read or
stopped in breach of the Circular.
It follows that the applicant has not complied in this respect
either with the condition as to the exhaustion of domestic remedies and
this part of the application must be rejected under Article 27 para.
3 (Art. 27-3) of the Convention.
6. Finally, the applicant complains about the lack of an effective
remedy in respect of his complaints concerning Scotland subsequent to
12 October 1992. He again invokes Article 13 (Art. 13) of the
Convention.
In the light of the Commission's finding that the applicant
failed to exhaust domestic remedies in connection with his complaint
of interference with his legal correspondence in Scotland subsequent
to 12 October 1992, the Commission finds that the complaint under
Article 13 (Art. 13) is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy