EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28555/95

Madeleine Togher

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 25 October 1999)

28555/95 - i -

Page

INTRODUCTION .......................................................... 1

PART I : STATEMENT OF THE FACTS ...................................... 3

PART II : SOLUTION REACHED ............................................ 4

INTRODUCTION

1 . This Report relates to the application introduced under former [1] Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by Ms Madeline Togher on 6 February 1995. It was registered on 18 September 1995 under file No. 28555/95.

2 . The applicant was represented by Ms Camilla Loewe , a solicitor practising in London and, subsequently, by Mr Stephen Deakin , a solicitor practising in Manchester.

3 . The Government of the United Kingdom were represented by their Agents, Ms Susan McCrory and, subsequently, by Hugh Llewellyn , Agents, of the Foreign and Commonwealth Office.

4 . On 15 April 1998 the Commission declared the application partially admissible insofar as it concerned the applicant’s complaints under Articles 3 and 8 of the Convention about her separation from her baby during her pre-trial detention as a category A security prisoner in Holloway prison. It then proceeded to carry out its task under former Article 28 § 1 of the Convention which provides as follows:

“In the event of the Commission accepting a petition referred to it:

a. it shall, with a view to ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission;

b. it shall at the same time place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention.”

5 . The Commission found that the parties had reached a friendly settlement of the case and on 25 October 1999 it adopted this Report, which, in accordance with former Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.

6 . The following members were present when the Report was adopted:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

Mrs J. LIDDY

MM J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

A. PERENI Č

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

PART I

STATEMENT OF THE FACTS

7 . The applicant is a British citizen, born in 1972 and resident in London.

8 . On 11 January 1995, ten days after the birth of her first child whom she was breast-feeding, the applicant was arrested on the basis of suspected drugs’ offences. She was subsequently charged and remanded in custody to Holloway prison as a category A security prisoner.

9 . She then challenged her security categorisation in various proceedings raising mainly the separation from her baby resulting from her category A status and the alleged consequent harm to herself and the baby. The Custody Group rejected her submissions on 18 January 1995. The High Court refused leave to take judicial review proceedings on 23 January 1995 and the Court of Appeal rejected a renewed application on 1 February 1995.

10 . On 14 April 1995 the applicant was charged with a second drugs’ offence but on 20 April 1995 she was granted bail and released when she was re-united with her daughter. A third drugs’ charge was subsequently added and the second charge was withdrawn. The applicant was acquitted of the first charge on 19 March 1997 and the third charge has not been pursued.

11 . The applicant complained to the Commission mainly under Articles 3 and 8 in relation to the enforced separation from her baby which resulted from her categorisation as a category A security prisoner during her pre-trial detention in Holloway prison.

PART II

SOLUTION REACHED

12 . Following the decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with former Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.

13 . In accordance with the usual practice, the Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.

14 . By letter dated 10 June 1998 the Government indicated their willingness, in principle, to reach a friendly settlement in the case.  Having received a proposal for settlement from the applicant, the Government countered with an offer, in its letter of 16 October 1998, to pay the applicant GBP 7,500.00 in non-pecuniary damages together with the reasonable legal costs of the application to the Commission in full and final settlement of the matter. The applicant’s representatives confirmed the applicant’s rejection of this offer by letter to the Commission dated 18 December 1998.

15 . By letter dated 4 February 1999 the Government offered to increase the non-pecuniary damage element of its previous proposal to GBP 10,000.00. By letter dated 25 March 1999 the applicant’s representative confirmed the applicant’s acceptance of the Government’s increased offer.  The Government and the applicant, by letters dated 6 and 13 April 1999, respectively confirmed to the Commission that they would negotiate directly with each other the precise level of legal costs to be reimbursed to the applicant.

16 . By letter dated 10 August 1999 the applicant’s former representatives indicated to the Commission that they had no outstanding costs in this matter. By letter of 19 August 1999 the applicant’s representatives confirmed that the applicant had received GBP 10,000.00 compensation for non-pecuniary damage from the Government and that all their legal costs and expenses had also been paid by the Government.

17 . At its session on 25 October 1999, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to former Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.

18 . For these reasons, the Commission adopted the present Report.

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1]  The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998