Information Note on the Court’s case-law No. 128
March 2010
Nilsen v. the United Kingdom (dec.) - 36882/05
Decision 9.3.2010 [Section IV]
Article 10
Article 10-1
Freedom of expression
Measures taken by prison service to prevent serial killer publishing autobiographical work: inadmissible
Facts – The applicant was a convicted serial killer serving a life sentence. Following his conviction, he spent four years writing an autobiography in prison which contained detailed accounts of the killings and the abuse, dismemberment and disposal of the bodies. By that stage, a journalist had already published a book about the murders containing graphic descriptions of the offences. The applicant arranged for his own 400‑page manuscript to be removed from the prison without the knowledge of the prison authorities but, although copies were made, no steps were taken to publish it. Some years later his solicitor sent a copy of the manuscript to the prison as the applicant wished to rework it with a view to publication. The prison service refused to pass it on to the applicant, however, on the grounds that it would be contrary to a standing order that prevented the transmission of material intended for publication which contained information about a prisoner’s offences*. In its view, the manuscript would be likely to cause great distress to surviving victims and to victims’ families and to cause a justifiable sense of outrage among the general public. An application by the applicant for leave to seek judicial review of that decision was refused by the High Court in a decision that was upheld by the Court of Appeal.
Law – Article 10: The refusal to return the manuscript to enable the applicant to revise it in prison with a view to publication amounted to an interference with his right to freedom of expression that was prescribed by law and pursued the legitimate aim of protecting health or morals and the reputation or rights of others.
As to whether the interference was necessary in a democratic society, the Court noted, firstly, that the relevant provisions of domestic law were not of themselves disproportionate. Some control over the content of prisoners’ communication outside prison was part of the ordinary and reasonable requirements of imprisonment and was not, in principle, incompatible with Article 10. Paragraph 34 of the standing order did not contain a blanket restriction, but allowed constructive communication by prisoners about their crimes in the form of “serious representations about conviction or sentence or ... serious comment about crime, the processes of justice or the penal system”. It explicitly required Convention compliance and, in particular, the carrying out of a balancing exercise, which the domestic courts had performed. As to the application of those provisions, the applicant’s crimes had been described by the High Court as being “as grave and depraved as it is possible to imagine”. The impact on the families and surviving victims had been a main, if not key, concern of the domestic authorities. That the perpetrator of such crimes should seek to publish for personal satisfaction his own account of the killing and mutilation of his victims was an affront to human dignity, one of the fundamental values underlying the Convention. As regards the sense of outrage amongst the public, there was a substantive and substantial difference between the perpetrator of grave, depraved and serious crime publishing his own detailed autobiographical description of those offences and a third party writing about the crimes and the offender. The Court also rejected the applicant’s contention that, since copies of the manuscript were already in the public domain and a book on his crimes had been published in 1985, the restriction was futile. The applicant had clearly not wished to publish the manuscript in its original form but had sought to get it back with a view to reworking it and publishing a revised version, which, quite obviously, was not in the public domain. As to the book that had already been published, the Court had already noted that there was a relevant difference between a detailed autobiographical description of the crimes and a third party account. Lastly, the suggestion that the applicant intended to rewrite the manuscript to make it compliant with the standing order was untenable in the absence of any indication as to how a voluminous autobiographical manuscript could be excised of injurious material and comment and be converted into a serious work on the criminal-justice system. The interference thus corresponded to a pressing social need and was proportionate to the legitimate aims pursued.
Conclusion: inadmissible (manifestly ill-founded).
* Paragraph 34(9) of SO5B. Paragraph 34(9)(c) does, however, permit an exception to be made where the material contains “serious representations about conviction or sentence or forms part of serious comment about crime, the processes of justice or the penal system ...”.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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