FOURTH SECTION
DECISION
Application no. 9909/10
S.S.
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 18 February 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 16 February 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, S.S., is a British national, who was born in 1981 and lives in Nottingham. He was represented before the Court by Ms K. Mark of Chivers Solicitors, a lawyer practising in Bingley.
2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan of the Foreign & Commonwealth Office.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant pleaded guilty to committing a sexual offence against a minor and on 12 May 2008 he was sentenced to three and a half years’ imprisonment. In addition, a Sex Offender Prevention Order (“SOPO”) was made against the applicant. The SOPO, which was to last for five years beginning on 12 May 2008, prohibited him from having contact with female minors under the age of 16.
5. The applicant and his partner have a son, D, who was born on 12 February 2006. In or around October 2008 the prison service informed the applicant that he could have no contact whatsoever with his son while he was in prison. The applicant appealed against this decision and on 8 November 2008 he was advised that the decision had been taken in the mistaken belief that the SOPO prohibited contact with both male and female minors. The matter was therefore referred to the Safeguarding Children Panel for review.
6. On 9 January 2009 the Panel informed the applicant that he had been placed on level 3 of the contact arrangements, which meant that he was only permitted contact with his son via written correspondence and telephone calls, both of which were to be monitored subject to a risk assessment being carried out and regularly reviewed. The applicant requested full reasons for this decision and on 3 February 2009 he was advised that the decision was made in consultation with his probation officer and Children’s Services. A further letter received by the applicant’s solicitor in January 2009 indicated that “visiting a prison environment would not be in the child’s best interests or have any positive impact on the child at this time”. The letter also indicated that the applicant’s partner shared this view. However, the applicant’s partner later denied that this was the case and on 11 February 2009 she gave a statement in support of the applicant’s application for his son to visit him in prison. In that statement she indicated that she was only concerned that the contact would be irregular and cause her son further disappointment.
7. The applicant renewed his application on 9 June 2009, but the Panel again concluded that “visiting the prison environment would not be in the child’s best interests at this time”.
8. The applicant issued judicial review proceedings on 24 August 2009 to challenge this decision on the grounds, inter alia, that it violated his rights under Article 8 of the Convention as it was disproportionate and/or had been made in compliance with an unpublished blanket policy that any person convicted of a sexual offence against minors would not be allowed to receive visits from any minors. On 7 October 2009 the applicant was refused permission to apply for judicial review on the grounds that the decision was not irrational in light of the authorities’ unanimous assessments and the child’s best interests had to take priority over the applicant’s right to respect for his family life.
9. The applicant renewed his application for permission but the application was refused on 11 November 2009.
10. The applicant submits that on the advice of his counsel he did not seek leave to appeal to the Court of Appeal because he was due to be automatically released on 12 February 2010, at the halfway point of his sentence, and the domestic courts would not entertain an academic application unless there was a strong public interest element.
B. Relevant domestic law and practice
1. The Human Rights Act 1998
11. Section 6(1) of the Human Right Act makes it unlawful for any public authority to act incompatibly with a Convention right. Section 8 enables any court which finds that a public authority has breached section 6(1) to grant such remedy, within its powers, as it considers appropriate.
2. The Prison Rules 1999
12. The Prison Rules 1999, which were made by the Secretary of State for the Home Department pursuant to section 47(1) of the Prison Act 1952, provide that:
“Outside contacts
4. - (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.
(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.
... ... ...
Communications generally
34. - (1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed -
(a) does not interfere with the convention rights of any person; or
(b) (i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the convention right to be interfered with; and
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are –
(a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the judiciary; or
(h) the protection of the rights and freedoms of any person.
(4) Subject to paragraph (2) above, the Secretary of State may require that any visit, or class of visits, shall be held in facilities which include special features restricting or preventing physical contact between a prisoner and a visitor.
(5) Every visit to a prisoner shall take place within the sight of an officer or employee of the prison authorised for the purposes of this rule by the governor (in this rule referred to as an "authorised employee"), unless the Secretary of State otherwise directs, and for the purposes of this paragraph a visit to a prisoner shall be taken to take place within the sight of an officer or authorised employee if it can be seen by an officer or authorised employee by means of an overt closed circuit television system.
(6) Subject to rule 38, every visit to a prisoner shall take place within the hearing of an officer or authorised employee, unless the Secretary of State otherwise directs.
(7) The Secretary of State may give directions, either generally or in relation to any visit or class of visits, concerning the day and times when prisoners may be visited.
(8) In this rule –
(a) references to communications include references to communications during visits;
(b) references to restrictions and conditions upon communications include references to restrictions and conditions in relation to the length, duration and frequency of communications; and
(c) references to convention rights are to the convention rights within the meaning of the Human Rights Act 1998."
Personal letters and visits
35. (2) Subject to paragraphs (2A) and (8), a convicted prisoner shall be entitled -
(a) to send and to receive a letter on his reception into a prison and thereafter once a week; and
(b) to receive a visit twice in every period of four weeks, but only once in every such period if the Secretary of State so directs.
(2A) A prisoner serving a sentence of imprisonment to which an intermittent custody order relates shall be entitled to receive a visit only where the governor considers that desirable having regard to the extent to which he has been unable to meet with his friends and family in the periods during which he has been temporarily released on licence.
(3) The governor may allow a prisoner an additional letter or visit as a privilege under rule 8 or where necessary for his welfare or that of his family.
(4) The governor may allow a prisoner entitled to a visit to send and to receive a letter instead.
(5) The governor may defer the right of a prisoner to a visit until the expiration of any period of cellular confinement.
(6) The board of visitors may allow a prisoner an additional letter or visit in special circumstances, and may direct that a visit may extend beyond the normal duration.
(7) The Secretary of State may allow additional letters and visits in relation to any prisoner or class of prisoners.
(8) A prisoner shall not be entitled under this rule to receive a visit from:
(a) any person, whether or not a relative or friend, during any period of time that person is the subject of a prohibition imposed under rule 73; or
(b) any other person, other than a relative or friend, except with the leave of the Secretary of State.
(9) Any letter or visit under the succeeding provisions of these Rules shall not be counted as a letter or visit for the purposes of this rule.”
COMPLAINT
13. The applicant complains under Article 8 of the Convention that the refusal to permit his son to visit him in prison disproportionately interfered with his right to respect for his family life.
THE LAW
14. The Government argued that as the applicant had been released from prison, the sole object of his claim before this Court was to obtain a declaration that his rights had been breached and non-pecuniary damages for a past breach of Article 8 of the Convention. They therefore submitted that he had failed to exhaust domestic remedies because he had not sought damages at any point during the domestic proceedings.
15. The Government referred the Court to section 6(1) of the Human Rights Act 1998, which makes it unlawful for any public authority to act incompatibly with a Convention right. Section 8 enables any court which finds that a public authority has breached section 6(1) to grant such remedy within its powers as it considers appropriate. In the case of the High Court, that could include an award of damages. The Government therefore submitted that at the oral permission hearing before the Administrative Court the applicant could have applied for permission to amend the Claim Form to include a claim for damages. Alternatively, he could have brought a freestanding claim for compensation to the County Court or the High Court.
16. The applicant submitted that he did not initially seek compensation as the application for permission to apply for judicial review was lodged at a time when he was solely concerned with seeing his son. He decided not to pursue the matter before the Court of Appeal when it became clear that he would be released before any appeal could take place. He therefore averred that the Government’s submissions were misconceived.
17. The rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see McFarlane v. Ireland [GC], no. 31333/06, § 107 10 September 2010 and T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 55). Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000).
18. The Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see, inter alia, Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005; MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005; and Milosevic v. the Netherlands (dec.), no. 77631/01, 19 March 2002). However, an applicant is not required to use a remedy which, “according to settled legal opinion existing at the relevant time”, offers no reasonable prospects of providing redress for his complaint (see D. v. Ireland (dec.), no. 26499/02, §§ 89 and 91, 28 June 2006 and Fox v. the United Kingdom (dec.), § 42). Equally, an applicant cannot be regarded as having failed to exhaust domestic remedies if he can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he has not used was bound to fail (Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003‑VI; Salah Sheekh v. the Netherlands, no. 1948/04, §§ 121 et seq., ECHR 2007‑... (extracts)).
19. In the present case the Court is satisfied that section 8 of the Human Rights Act 1998 would have provided the applicant with an effective means of claiming compensation before the domestic courts for the alleged breach of Article 8. In particular, it notes that he could have made a claim for compensation at the outset; he could have applied to amend the Claim Form once it became apparent that his imminent release made the pursuit of his claim as it originally stood “academic”; or he could have brought a freestanding claim for compensation under the 1998 Act. There is no reason to suppose that any of these remedies could not have offered adequate redress or would not have had a reasonable prospect of success.
20. The Court accepts that when the proceedings were initially issued, the applicant was primarily concerned with challenging the decision which was preventing his son from visiting him in prison. Nevertheless, he has not adequately explained why he did not also claim compensation for non-pecuniary damage at this juncture. In any case, even if his explanation were to be accepted, he has not provided a satisfactory explanation for why he did not subsequently claim compensation.
21. Furthermore, although it is not in dispute that junior counsel advised the applicant that an appeal to the Court of Appeal would not have been likely to succeed as it would have been purely academic, he was referring to an appeal against the refusal of permission to seek judicial review. There is nothing to indicate that counsel at any time advised the applicant of the prospect of success of a claim for compensation.
22. Consequently, the Court finds the applicant’s complaint under Article 8 of the Convention to be inadmissible for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy