Application No. 13590/88

Thomas CAMPBELL

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 12 July 1990)

                              TABLE OF CONTENTS

                                                            page

I.      INTRODUCTION (paras. 1-16)                            1

        A.  The application (paras. 2-4)                      1

        B.  The proceedings (paras. 5-12)                     1

        C.  The present Report (paras. 13-16)                 2

II.     ESTABLISHMENT OF THE FACTS (paras. 17-38)             4

        A.  Particular circumstances of the case              4

            (paras. 17-28)

        B.  Relevant domestic law (paras. 29-38)              6

            a.  In general (paras. 29-30)                     6

            b.  Correspondence with legal advisers

                (paras. 31-35)                                6

            c.  Correspondence concerning proceedings

                under the European Convention on Human Rights

                (paras. 36-38)                                8

III.     OPINION OF THE COMMISSION (paras. 39-77)             9

        A.  Points at issue (para. 39)                        9

        B.  Opening of correspondence with the applicant's

            solicitor (paras. 40-62)                          9

            a.  Opening of correspondence with the solicitor

                concerning contemplated and pending

                proceedings (paras. 49-56)                   11

            b.  Opening of general correspondence with

                the solicitor (paras. 57-62)                 12

        C.  Opening of correspondence with the Commission

            (paras. 63-74)                                   13

            a.  Article 8 of the Convention (paras. 64-72)   13

            b.  Article 25 of the Convention (paras. 73-76)  15

        D.  Recapitulation (para. 77)                        16

Partially dissenting opinion of Mr.  H.G. Schermers           17

Partially dissenting opinion of Sir Basil Hall

joined by Mrs.  J. Liddy                                      19

APPENDIX I     History of the proceedings                    20

APPENDIX II    Decision on the admissibility                 22

               of the application

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 Thomas Campbell, a British citizen born in

1952.  He is currently serving a sentence of life imprisonment in

Barlinnie prison, Glasgow.  The applicant is represented before the

Commission by Mr.  John Carroll, a solicitor practising in Glasgow.

3.     The application is directed against the United Kingdom.  The

Government are represented by their Agent, Mr.  Michael Wood of the

Foreign and Commonwealth Office, London.

4.     The case relates to the applicant's complaints that his

correspondence with his solicitor and the European Commission of Human

Rights has been opened by the prison authorities.  The application

raises issues under Articles 8 and 25 of the Convention.

B.      The proceedings

5.     The application was introduced on 14 January 1986 and

registered on 5 February 1988.

6.     On 13 July 1988 the Commission decided, pursuant to Rule 42

para. 2 (b) of its Rules of Procedure, that notice of the application

should be given to the respondent Government and that they should be

invited to present, before 10 November 1988, their written observations

on the admissibility and merits of the application.

7.     The Government sent their written observations on 1 December

1988, after an extension of the time-limit for their submission had

been granted by the President of the Commission.  The applicant's

representative submitted the applicant's written observations in reply

on 7 March 1989.

8.     Further information was submitted by the applicant on 12 May

1989 and by the Government on 23 May 1989.

9.     On 17 March 1989, the Commission decided to grant legal aid to

the applicant.

10.     On 7 September 1989 the Commission decided, pursuant to Rule 42

para. 3 (b) of its Rules of Procedure, to invite the parties to make

further oral submissions at a hearing on the admissibility and merits

of the applicant's complaints concerning the opening of his

correspondence.

        At the hearing, which was held on 8 November 1989, the

applicant was represented by Mr.  John Carroll.  The Government were

represented by their Agent, Mr.  Michael Wood, Mr.  MacKay, QC,

Mrs.  MacDonald (Scottish Office) and Mr.  Reeves (Scottish Home and

Health Department), Advisers.

11.     On 8 November 1989 the Commission declared the application

inadmissible as regards the applicant's complaints concerning refusal

of legal aid and his complaint concerning the opening of a letter to a

Member of Parliament and admissible the applicant's complaints

concerning interference with his correspondence.  The Commission also

decided to examine further whether the opening of the applicant's

correspondence from the Commission was compatible with Article 25

para. 1 of the Convention.  The parties were then invited to submit any

additional observations on the merits of the application.  The

applicant submitted further observations on 5 February 1990 and the

Government on 23 February 1990.  The Commission considered the state

of proceedings on 12 May 1990.

12.     After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (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'

reactions, the Commission now finds that there is no basis on which a

friendly settlement can be effected.

C.      The present Report

13.    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:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     G. SPERDUTI

                     E. BUSUTTIL

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                M.   C.L. ROZAKIS

                Mrs.  J. LIDDY

14.     The text of the Report was adopted by the Commission on

12 July 1990 and is now transmitted to the Committee of Ministers

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

15.     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.

16.     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.

       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.      Particular circumstances of the case

17.     The applicant is serving a term of life imprisonment for

murder following his conviction on 10 October 1984.

18.     Since his imprisonment the applicant has been advised by his

solicitor in respect of:

    1.  an action for damages for injuries sustained on 3 November 1985;

    2.  a claim against the Secretary of State for damages in respect

        of injuries sustained on 25 April 1987;

    3.  a claim against the Secretary of State in respect of

        infestation of lice while in the hospital wing of Peterhead

        Prison in November 1985;

    4.  a possible prosecution by the police (arising out of an

        incident in Barlinnie Prison on 25 April 1987);

    5.  a denial of communication with the solicitor following the

        said incident on 25 April 1987;

    6.  the Prison Department's denial of the applicant's right to

        free and unrestricted correspondence between himself and his

        legal advisers on all of the above matters;

    7.  an application (Application No. 12323/86) to the European

        Commission of Human Rights concerning inter alia his solitary

        confinement and access to his solicitor while in custody in

        hospital;

    8.  the present application.

19.     The applicant states that throughout his detention, from 1985

onwards, his correspondence with his solicitor and the Commission has

regularly been interfered with, in being opened and screened by the

prison authorities.

20.     On 16 September 1985, the applicant's solicitor wrote to the

Governor, HM Prison Peterhead, asking that all correspondence between

him and his client should pass without interference.  After the

Deputy Governor of Peterhead had discussed the matter with the

applicant, he wrote on 23 September 1985 to the applicant's solicitor

indicating that outgoing mail from the applicant to his solicitor

concerning his petition to the Commission, if properly marked, would

not be opened.

21.     In a further letter dated 4 October 1985 the solicitors wrote

to the Governor of Peterhead Prison again asking for Standing Order M

to be waived regarding all solicitors' correspondence.  On 15 October

1985 the Governor replied that incoming mail from the solicitor

concerning an application to the Commission, suitably identified,

would be opened in the presence of the prisoner and handed to him

unread.  The Governor explained that this arrangement would not apply

to solicitors' correspondence about matters other than the application

to the Commission.

22.     On 24 October 1985 the applicant's solicitor wrote to the

Scottish Home and Health Department again requesting that all the

correspondence between him and his client should pass unopened.

23.     On 29 October 1985 the applicant petitioned the Secretary of

State complaining about censorship of his mail with his solicitor.  In

their reply to this and other petitions on 19 June 1986 the Scottish

Home and Health Department advised the applicant that his solicitor

had been told on 15 October 1985 that correspondence "in respect of

ECHR procedures" should be clearly marked to ensure privacy but that

any other correspondence between an inmate and his legal adviser was

subject to the normal rules.

24.   On 16 June 1986 the Scottish Home and Health Department wrote

to the applicant's solicitor confirming the arrangements for

solicitors' correspondence concerning matters before the Commission

but reaffirming that other correspondence was still subject to normal

rules.

25.     In his petition dated 19 June 1986 the applicant again

complained that incoming mail from his solicitor was scrutinised.  He

repeated these complaints in his petition dated 27 June 1986.  In

these petitions, the applicant also drew the attention of the

authorities to the fact that correspondence from the European

Commission of Human Rights was being opened.  The reply to these

petitions received by the applicant on 15 July 1986 referred the

applicant to the existing arrangements.  In his petition of

30 December 1986 he complained that a letter from a firm of solicitors

was opened before he received it.

26.     The Scottish Home and Health Department stated in a letter

dated 16 June 1987 to the applicant's solicitor that all

correspondence would continue to be opened except that concerning a

complaint to the European Commission of Human Rights.  However,

despite this statement correspondence to and from the Commission has

been opened.  The applicant refers to letters dated 20 June 1985,

17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986, 22 May

1986, 7 January 1987, 4 June 1987, 18 August 1987, 2 October 1987,

7 October 1987 and 3 November 1987 from the Commission which show the

prison censor's mark on the top right hand corner.  The Government

accept that five of these letters (17 July 1985, 9 October 1985, 20

November 1985, 22 April 1986 and 18 August 1987) were opened.  It

considers that three other letters (20 June 1985, 22 May 1986 and 7

January 1987) may have been opened but that it is not possible to

identify the markings.  Of two remaining letters (2 and 7 October

1987) which the applicant alleges were opened the Government state

that there are no identificable marks and no opinion is expressed as

to whether they have been opened or not.

27.     A letter sent by the applicant to his Member of Parliament

dated 25 August 1987 also received the same scrutiny.

28.     The applicant's solicitors applied for legal aid to bring

civil proceedings in respect of the interference with the applicant's

correspondence.  Legal aid was refused on 7 October 1986 by the

Supreme Court Legal Aid Committee on the ground that the applicant had

no probable cause of action.  The Committee also noted that the

applicant was not being denied visits from his legal advisers and that

he has not indicated that he was unable to give instructions verbally

to his advisers.  The applicant's appeal against this decision was

refused on 5 December 1986 by the Legal Aid Central Committee of the

Law Society of Scotland.

B.      Relevant domestic law and practice

a.      In general

29.     The system of prisons in Scotland is governed by the Prisons

(Scotland) Act 1952 (c.61), section 35(1) of which provides that:

        "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."

30.     In exercise of his powers under section 35 the Secretary of

State has made the Prison (Scotland) Rules 1952 (S.I. 1952/565) ("the

Rules").  To supplement these statutory provisions the Secretary of

State issues advice and instructions to the Governors of prisons by

way of administrative orders, collectively known as the Prison

(Scotland) Standing Orders, and administrative circulars.

b.      Correspondence with legal advisers

31.     Communications between prisoners and their legal advisers and

others are governed principally by Rule 74 of the Rules.  Rule 74(4)

provides that every letter to or from a prisoner shall be read by the

Governor or by an officer deputed by him for that purpose.  The only

exceptions to this general rule are letters of request or complaint to

the Secretary of State or the Visiting Committee which may not be

opened by the Governor if they are sealed by the prisoner.

32.     In the case of remand prisoners, Rule 124(2) provides that they

shall be allowed to write to their legal advisers.  Under Rule 124(3)

any confidential written communications prepared by such a prisoner as

instructions for his legal adviser may be delivered to the legal

adviser without being examined by any officer of the prison unless the

Governor has reason to suppose that it contains matters not relating

to such instructions.  Under Rule 127 this facility is also available

to convicted prisoners who are the subject of further charges.

Similar provisions apply under Rule 132(2) to an appellant in

connection with his appeal.

33.     These rules are supplemented by Standing Order M, which deals

in detail with communications between prisoners and others.  Copies

of this Standing Order are available to prisoners and the public.

Standing Order Mal(a) sets out the purpose of examination of the

correspondence, namely to prevent its use to plan escapes or

disturbances or otherwise jeopardise the security of the establishment

and to satisfy other reasonable requirements of prison administration.

Under Standing Order Mal(d), when correspondence is examined or read

this is to be done as quickly as possible.

34.     For the purposes of examination and censorship, Standing Order

Ma6 divides correspondence, both incoming and outgoing, into five

groups.  Most correspondence with legal advisers falls into category

(e), that is, general correspondence.  Under Standing Order Ma7 such

correspondence must not contain any of the material specified in that

Standing Order:

        "7.     General Correspondence

                General correspondence (ie at (e) above) may not

                contain the following:

                (a)     Escape plans, or material which if allowed

                        would jeopardise the security of a prison

                        establishment.

                (b)     Plans or material which would tend to

                        assist or encourage the commission of any

                        disciplinary offence or criminal offence

                        (including attempts to defeat the ends of

                        justice by suggesting the concoction or

                        suppression of evidence).

                (c)     Material which could jeopardise national

                        security.

                (d)     Descriptions of the making of any weapon,

                        explosive, poison or other destructive

                        devise.

                (e)     Obscure or coded messages which are not

                        readily intelligible or decipherable.

                (f)     Threats of violence or of damage to

                        property likely to induce fear in the

                        recipient.

                (g)     Blackmail or extortion.

                (h)     Indecent or obscene material.

                (i)     Information which would create a clear threat

                        or present danger of violence or physical harm

                        to any person.

                (j)     Complaints about prison treatment which the

                        inmate has not yet raised through the

                        prescribed procedures, ...

                ...

                (k)     Material which is intended for publication or

                        for use by radio or television (or which, if

                        sent, would be likely to be published or

                        broadcast)...

                ...

                (l)     Material constituting the conduct of business

                        activity...

                ...

                (m)     In the case of an inmate against whom a

                        deportation order is in force, material

                        constituting or arranging any financial

                        transaction, ...

                ...

                (n)     In the case of an inmate in respect of whom a

                        receiving order has been made or who is an

                        undischarged bankrupt, material constituting

                        or arranging any financial transaction...".

35.     Following the friendly settlement in the case of McComb v.

the United Kingdom (No. 10621/83, Comm.  Report, 15.5.86, to be

published in D.R. 50) the Secretary of State initiated new procedures

dealing with correspondence between a prisoner and legal adviser in

respect of legal proceedings.  These new procedures came into force in

Scotland on 21 March 1988.  They are set out in a new Standing Order

Ma8:

        "Correspondence with a legal adviser about legal proceedings

        to which an inmate is already a party or about a forthcoming

        adjudication, may not be read or stopped unless the Governor

        has reason to suppose it contains other material.  Such a

        letter may be examined for illicit enclosures, but should

        only be opened for that purpose in the presence of the

        inmate by whom it is sent or to whom it is addressed.

        Other correspondence with a legal adviser may be read and may

        not contain anything specified in Standing Order Ma7(a)-(i)

        and (k) to (n).  Such correspondence may not be stopped on

        the grounds that it contains material prohibited by Standing

        Order Ma7(j) unless it is clear that the inmate is not

        seeking legal advice but is writing for some other purpose."

c.      Correspondence concerning proceedings under the European

        Convention on Human Rights

36.     In addition to general provisions relating to correspondence,

Standing Order M contains specific provisions relating to

correspondence with the European Commission or Court of Human Rights

or with a legal adviser in connection with a petition to the

Commission or pending proceedings before the Commission or the Court.

Under Standing Order Ma10 such correspondence may not contain material

prohibited under Standing Order Ma7(a) to (c) or (e).

37.     Further general provisions relating to the Convention are to

be found in Standing Order Mf.  In particular, Standing Order Mf7

expressly provides that correspondence between an inmate and his legal

adviser about a petition to the Commission or proceedings resulting

therefrom should not be read unless the Governor has reason to suppose

that the correspondence contains other matters.

38.     The Government state that in practice, as regards

correspondence between prisoners and the Commission, outgoing letters

if sealed will normally go unopened.  Incoming letters from the

Commission are opened; the contents are examined to confirm that they

are what they purport to be but they are not read; they are thereafter

issued promptly to the prisoner.

III.    OPINION OF THE COMMISSION

A.      Points at issue

39.     The principal issues to be determined are

-       whether there has been a violation of Article 8 (Art. 8) of

the Convention as a result of the opening of the applicant's

correspondence with his solicitor concerning contemplated and pending

proceedings;

-       whether there has been a violation of Article 8 (Art. 8) of the

Convention as a result of the opening of general correspondence with

his solicitor;

-       whether there has been a violation of Article 8 (Art. 8) of the

Convention as a result of the opening of the applicant's

correspondence with the European Commission of Human Rights;

-       whether the opening of the applicant's correspondence with the

European Commission of Human Rights has hindered the applicant in the

effective exercise of the right of individual petition contrary to

Article 25 para. 1 (Art. 25-1) of the Convention.

B.      Opening of correspondence from the applicant's solicitor

40.     The relevant part of Article 8 (Art. 8) of the Convention provides:

        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.

41.     In its opinion in the case of SILVER and Others v. the United

Kingdom (No. 5947/72 etc., Comm.  Rep. 11.10.80) the Commission

stated as follows (paras. 269 - 271):

        "... 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)."

42.     As regards Article 8 para. 2 (Art. 8-2), the Commission

recalled in that case that the interference had to be in accordance

with the law, which entailed three requirements - that the

interference in question must have some basis in domestic law and that

the law must be adequately accessible and foreseeable (Eur. Court

H.R., Sunday Times judgment of 26 April 1979, Series A No. 30, p. 30,

paras. 47-49).  In respect of the condition "necessary in a democratic

society" the Commission recalled that restrictions imposed on a

prisoner's right to respect for correspondence had to be necessary and

proportionate to meet a legitimate governmental aim.  Thus a balance

had to be struck between the need to rehabilitate a prisoner and the

interest of public order and security (Silver and Others Rep., loc.

cit., paras. 286-290).

43.     The opinion of the Commission was not substantially contested

by the respondent Government before the European Court of Human

Rights, which confirmed most of the Commission's conclusions (Eur.

Court H.R., Silver and Others judgment of 25 March 1983, Series A,

No. 61, pp. 32 - 41, paras. 83 - 109).  The Court also applied in its

judgment the general principles underlying the phrase "necessary in a

democratic society", including inter alia, the principle that to be

compatible with the Convention the interference must correspond to a

"pressing social need" and be "proportionate to the legitimate aim

pursued" (loc.cit., p. 37-38, para. 97).

44.     The case of SILVER concerned almost exclusively complaints of

the stopping of letters.  As regards the opening of letters, without

stopping, the case-law of the Commission and Court establishes that the

supervision of prisoners' correspondence, while an interference with

the right to respect for correspondence, is in general justified under

the provisions of Article 8 para. 2 (Art. 8-2) for the prevention of

disorder and crime (Silver and Others Rep., loc. cit., paras. 423 -

426).  In addition, the delay in the posting of a letter while the

authorities contacted the applicant's representative was found in the

case of McCALLUM v. the United Kingdom (No. 9511/81, Comm.  Rep.

4.5.89) to be an interference justified under Article 8 para. 2

(Art. 8-2) as being for the protection of the rights and freedoms of

others.

45.     The Commission has also considered the problem of the

screening of correspondence from a solicitor to an applicant

concerning criminal proceedings against the applicant.  The Commission

declared the case admissible under Article 6 (Art. 6) and 8 (Art. 8) of

the Convention (McCOMB v. the United Kingdom, No. 10621/83, Dec. 11.3.85

to be published in D.R. 50).  The case  was settled on the basis set

out above (para. 35).

46.     In the present case, the applicant has complained of the

opening and screening by the prison authorities of his correspondence

with his solicitor.  It appears that from the beginning of his

sentence in 1984 to the present time the applicant has been advised by

his solicitor in relation to a number of matters including

contemplated and pending legal proceedings and other matters.

47.     The Commission notes that the applicant and his solicitor made

several complaints to the prison authorities concerning the practice of

opening the applicant's letters with his solicitor.  The prison

authorities however maintained that the correspondence remained

subject to the rules in operation, which permitted the opening of such

letters.  In these circumstances the Commission finds that the

applicant, a prisoner serving a life sentence, may claim to be a

victim of an interference with his right to respect for his

correspondence protected by Article 8 para. 1 (Art. 8-1) of the

Convention without specifying which letters in particular were opened

by the prison authorities.

48.     The Commission recalls that following the friendly settlement

in the case of McCOMB v. the United Kingdom (loc. cit.) a new

standing order Ma8 came into force on 21 March 1988, changing the

practice in respect of correspondence concerning pending proceedings.

The applicant's complaints in the present case relate only to the time

before the change.

a.      Opening of correspondence with the solicitor concerning

        contemplated and pending proceedings

49.     The Commission finds that the opening of the applicant's

correspondence with his solicitor concerning contemplated and pending

proceedings constituted an interference with the applicant's right to

respect for his correspondence within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention.

50.     The Commission must therefore determine whether this inter-

ference was in accordance with the law and necessary in a democratic

society for one or more of the purposes set out in para. 2 of Article

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

51.     The Commission finds that the interference was based on the

Standing Orders issued by the Secretary of State in pursuance of his

statutory authority under Section 35 of the Prisons (Scotland) Act

1952.  These Orders are published and available to prisoners and the

general public.  The Commission also notes that it is not disputed by

the parties that the measure complained of was in conformity with

Scottish law.  In these circumstances, the Commission finds that it was

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

(Art. 8-2) of the Convention.

52.     The Government submitted to the Commission that the

interference in question pursued the aim of "the prevention of

disorder and crime".  The applicant has not alleged that the

restriction in issue was designed or applied for another purpose.

The Commission is satisfied that the measures pursued the aim of "the

prevention of disorder and crime".

53.     As regards the necessity of the interference, the Commission

and the Court have in their case-law emphasised the importance of

protecting the confidentiality between a lawyer and his prisoner

client in the context of Article 6 para. 1 (Art. 6-1) of the

Convention and the principle of effective access to court.

54.     The Commission stated as follows in its Report in the Campbell

and Fell case:

        "It is a generally acknowledged principle in the Contracting

        States that conversations between a lawyer and his client

        concerning contemplated or pending litigation are protected by

        privilege, enabling the client to make a full disclosure of

        his affairs to his lawyer without fear of prejudicing any

        cause of action he may have.  In the Commission's view, where

        access to court is permitted only under conditions in which

        the potential litigant is denied the benefit of privilege

        normally afforded under domestic law, this amounts in

        principle to an interference with the right of access to court

        protected by Article 6 para. 1 (Art. 6-1)" (Campbell and Fell

        v. the United Kingdom, Comm.  Report 12.5.82, para. 158,

        Eur. Court H.R., Campbell and Fell judgment of 28 June 1984,

        Series A No. 80, p. 71 and p. 49, paras 111-113).

55.     The Commission takes the view that these considerations are of

equal significance in the context of Article 8 (Art. 8) of the Convention.

While the Commission does not exclude the opening of correspondence

concerning contemplated and pending proceedings where there exists a

reasonable suspicion that the privileged channel of communication is

being abused, the Commission notes that no allegations to this effect

have been made in the present case.  Furthermore, the solicitor enjoys

a special professional status (see para. 61).  In these circumstances,

the Commission finds that the opening of this category of

correspondence was not necessary in a democratic society in the

present case for the prevention of disorder or crime within the

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

        Conclusion

56.     The Commission concludes, by 11 votes to 1, that there has

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

opening of the applicant's correspondence with his solicitor concerning

contemplated and pending proceedings.

b.      Opening of general correspondence with the solicitor

57.     The Commission finds that the opening of the applicant's

general correspondence with his solicitor constitutes an interference

with his right to respect for his correspondence.

58.     The Commission also finds, as above (see paras. 51 - 52), that

this practice was in accordance with the law and pursued the aim of

the prevention of disorder and crime.

59.     As regards the necessity of the interference, the Government

have submitted that the opening of categories of solicitors'

correspondence with a prisoner other than those concerning pending

proceedings is necessary since there is always a risk that prisoners,

under cover of a letter from or to solicitors, would pass and receive

unauthorised material, which could pose a threat to good order and

discipline in the prison and facilitate attempts at escape, drug

dealing or other criminal activities.  They point out the abuses which

have already been found in respect of the McCOMB procedures - witness

statements being used to identify and intimidate witnesses and in sex

offence cases being circulated within prison as stimulatory material.

The Government contend that whatever the status and duties of a

solicitor, it cannot be assumed that every solicitor is competent and

honest or immune from the type of pressure that may be brought to

bear.

60.     The applicant has contended that it is equally important that

correspondence, which may lead to legal proceedings, should not be

read by prison authorities: such material is equally as confidential in

its nature if not more so, since correspondence about current

proceedings is more likely to refer to matters that have become public

knowledge.  The applicant also contends that a solicitor by virtue of

his profession enjoys important privileges and responsibilities, which

necessitate his acting with the strictest integrity.  While abuses may

occur, these are dealt with by the Law Society and the Courts and

cannot be used as the basis for refusing a solicitor the necessary

facilities for properly representing his client.

61.     The Commission recalls that Convention case-law has

established that the mere screening of correspondence is a measure in

general justified as necessary for the prevention of disorder or

crime.  An exception has been found above in relation to

correspondence from a solicitor relating to contemplated and pending

litigation.  The Commission recalls that the issue of the right to

respect for this correspondence under Article 8 (Art. 8) of the

Convention was found to be linked to the principle of effective access

to court under Article 6 para. 1 (Art. 6-1).  While this special

factor may be absent with regard to other correspondence with a

solicitor, the Commission recalls that under Article 8 para. 2 (Art.

8-2) the phrase "necessary in a democratic society" means that to be

compatible with the Convention, an interference must correspond to a

"pressing social need".  The Commission has had regard to the

professional status of solicitors, who are regarded as officers of the

court and subject to disciplinary sanction from, in Scotland, the Law

Society of Scotland and to the confidentiality attaching to

correspondence with a solicitor, even of a general nature.  The

Commission is of the opinion therefore that the opening of general

correspondence between solicitors and their clients is an interference

which does not correspond to a "pressing social need".  While the

opening of particular letters is not excluded in exceptional

circumstances, where for example there is a reasonable suspicion of

abuse, the Government have not submitted any special reasons

justifying the opening of letters between the applicant and his

solicitor in particular.  The Commission concludes therefore that the

opening of the applicant's general correspondence with his solicitor

was not justified as being necessary in a democratic society for the

prevention of crime and disorder within the meaning of Article 8 para.

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

        Conclusion

62.     The Commission concludes, by 8 to 4, that there has

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

opening of the applicant's general correspondence with his solicitor.

C.      Opening of correspondence with the Commission

63.     The applicant has introduced two applications (No. 12323/86

and the present application) before the Commission and complains that

his correspondence with the Commission is opened by the prison

authorities.  The Commission has examined these complaints under

Article 8 (Art. 8) of the Convention and Article 25 (Art. 25) of

the Convention.

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

64.     The Commission refers to the general principles and case-law

referred to above (paras. 40-45) which establish that the opening of

correspondence to a prisoner is in general justified under Article 8

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

65.     The Government have submitted that the opening of the

applicant's correspondence with the Commission cannot constitute

a violation of the applicant's rights under Article 8 (Art. 8) of the

Convention.  They submit that there are sound reasons why the

authorities should be entitled to open letters purposing to come from

the Commission in order to check that the contents are indeed a

communication from the Commission.  They refer to the inevitable risk

of abuse where there is a channel of communication known to be free of

surveillance.  The Government have also submitted that this complaint

falls to be dealt with under Article 25 para. 1 (Art. 25-1) in fine which

should be regarded as being the lex specialis in this matter.

66.     The applicant has argued that Article 8 (Art. 8) of the

Convention is applicable to his complaints, which concern an

interference with his right to respect for his correspondence, which

is expressly guaranteed under that provision.  He further disputes

that the opening of such correspondence can be considered justified

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

67.     The Commission takes the view that while Article 25 para. 1

(Art. 25-1) in fine is the lex specialis in relation to complaints which

impinge on the efficacy of communication between an applicant and

the Commission, it is not thereby barred from examining such

complaints also under Article 8 (Art. 8) of the Convention.  The two

provisions  address different issues and involve the application of

different principles.  Article 8 (Art. 8) of the Convention is therefore

applicable to the present case.

68.     The Commission finds that the opening of this correspondence

constitutes an interference with the applicant's right to respect for

his correspondence.  It also finds that the interference is "in

accordance with law", since it is provided for in the Standing Orders,

which are published and available.  The interference also pursues the

aim of "the prevention of disorder and crime".

69.     As regards the "necessity" of the interference, the Commission

recalls that Convention case-law has established that the opening of

correspondence is in general justified as necessary for the above

purpose.  An exception has been made above in respect of

correspondence with a solicitor having regard to the factors of

effective access to court and the status and responsibilities enjoyed

by solicitors in the Scottish legal system.  As regards interference

with correspondence with the Commission, the Commission recalls

that many complaints which are submitted to it by prisoners concern

their treatment and conditions of detention in prison.  The Commission

considers it essential that the channel of communication enjoyed by

prisoners with the Convention organs is free from all unnecessary

constraint.

70.     The Government in their submissions have referred to the

possibility of persons forging Commission stationery and sending

letters from Strasbourg.  The Commission finds this risk of abuse to

be negligible, no instances having been known to have occurred.  The

Commission also notes that several of the Contracting States have

enacted legislation which recognises the inviolability of

correspondence between prisoners and the Convention organs.

71.     The Commission recalls that Article 3 (Art. 3) of the European

Agreement relating to persons participating in proceedings before the

European Commission and Court of Human Rights, in particular Article 3

para. 2 (a) (Art. 3-2-a), appears to accept that the opening of

correspondence may take place.  The Commission considers, however,

that the provisions of this Agreement can have no bearing on the

content of the substantive rights guaranteed under the Convention.

The Commission would in any case consider that this provision serves

to prohibit stopping or delay where exceptional circumstances justify

the opening of particular letters, rather than to confer a general

power of screening in respect of all letters.

        Consequently, the Commission considers that there is no

"pressing social need" for this interference with correspondence with

the Commission and notes again that no special circumstances

justifying suspicion of abuse have been put forward by the Government

in the present case.  The Commission finds therefore that the opening

of these letters is not justified as necessary in a democratic society

for the purpose of the prevention of disorder and crime.

        Conclusion

72.     The Commission concludes, by 11 votes to 1, that there has

been a violation of Article 8 (Art. 8) of the Convention as a result

of the opening of the applicant's correspondence with the Commission.

b.      Article 25 (Art. 25) of the Convention

73.     Article 25 para. 1 (Art. 25-1) of the Convention provides.

        "The Commission may receive petitions addressed to the

        Secretary-General of the Council of Europe from any person,

        non-governmental organisation or group of individuals claiming

        to be the victim of a violation by one of the High Contracting

        Parties of the rights set forth in this Convention, provided

        that the High Contracting Party against which the complaint

        has been lodged has declared that it recognises the competence

        of the Commission to receive such petitions.  Those of the

        High Contracting Parties who have made such a declaration

        undertake not to hinder in any way the effective exercise of

        this right."

74.     The Commission has examined whether, in the present case, the

opening by the prison authorities of the applicant's correspondence

with the Commission in the present case was compatible with Article

25 para. 1 (Art. 25-1) of the Convention.  It notes that the opening

of this correspondence has been found to be in violation of Article 8

(Art. 8) of the Convention (see para. 72).  Article 25 para. 1.

(Art. 25-1) in fine of the Convention relates, however, to the

question of whether an applicant has been hindered in the exercise of

his right of individual petition.

75.     The Commission notes that the applicant has complained

only of the opening his letters with the Commission: he has not

complained that the letters were delayed or tampered with in any way.

The Commission finds no evidence in the present case that the applicant

suffered any prejudice in regard to the presentation of his

application to the Commission or that he was in any way frustrated in

the exercise of his right of application.  The Commission therefore

finds no indication that he has been hindered in the exercise of his

right of individual petition contrary to Article 25 para. 1

(Art. 25-1) in fine.

        Conclusion

76.     The Commission concludes, by 10 votes to 2, that the applicant

has not been hindered in the effective exercise of the right of

individual petition under Article 25 para. 1 (Art. 25-1) in fine of the

Convention.

D.      Recapitulation

77.-       The Commission concludes, by 11 votes to 1, that there has

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

opening of the applicant's correspondence with his solicitor

concerning contemplated and pending proceedings (para. 56).

-       The Commission concludes, by 8 votes to 4, that there has

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

opening of the applicant's general correspondence with his solicitor

(para. 62).

-       The Commission concludes, by 11 votes to 1, that there has

been a violation of Article 8 (Art. 8) of the Convention as a result of the

opening of the applicant's correspondence with the Commission (para. 72).

-       The Commission concludes, by 10 votes to 2, that the

applicant has not been hindered in the effective exercise of the right

of individual petition under Article 25 para. 1 (Art. 25-1) in fine of the

Convention (para. 76).

        Secretary to the Commission     President of the Commission

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

        Partially dissenting opinion of Mr. H.G. Schermers

        The problem underlying this case is comparable to the one in

the case of S. against Switzerland (Nos. 12629/87 and 13965/88,

Comm.  Rep. 12 July 1990) in which I dissented.  Again a proper balance

must be found between the interests of prisoners and their lawyers on

the one hand and those of the prison administration (and through them

of society in general) on the other.  Regard must be had to the fact

that the administration of a prison is not an easy task and requires

great care.  The authorities are responsible for keeping good order

and they must prevent inter alia plans for escape and the

smuggling of drugs.  This necessitates some supervision also over the

correspondence of prisoners.

        In the present case the Commission finds three violations in

respect of the opening of the applicant's correspondence.  In my

opinion, this goes too far.  Opening as such (for the sake of verifying

for example, whether there are no drugs hidden in a letter or whether

the sender mentioned on the envelope is the true provenance of the

letter) cannot be contrary to the Convention.  People who want to

deceive the prison authorities would not find it difficult to copy or

falsify an envelope of a lawyer or of the European Commission of Human

Rights.

        The policy of the (Deputy) Governor, explained in paras. 20

and 21 of the Report seems acceptable.

        A distinction should also be drawn between incoming and

outgoing mail.  The opening of incoming mail in the presence of the

prisoner and solely for the purpose of verification (that is without

the letter being read) should always be permitted.  After verification

that a letter is from the prisoner's lawyer the authorities should not

be allowed to read the letter.  I see no reason why the authorities

should not be allowed to read other letters.  In principle, prisoners'

letters do not contain confidential information.  Of course, the

censor should be bound by an obligation of confidentiality,

prohibiting him from passing on, or commenting on, the private affairs

of the inmate.

        With respect to letters from the European Commission of Human

Rights, it should be taken into account that it is the Commission's

policy to inform both parties of any developments in the proceedings.

Copies of letters to applicants are normally sent to the Government and

vice versa.  Letters to a prisoner would rarely, if ever, contain

confidential information.

        As regards outgoing mail the risk of abuse is less and the

need for confidentiality is greater.  When a letter is addressed to

the prisoner's lawyer or to the European Commission of Human Rights it

can hardly be expected that it will go elsewhere.  The need for

verification is negligible.  At the same time, there is a greater risk

for the prisoner that prison officers will take some sort of revenge

if they learn of the prisoner's complaints against them.  Therefore,

the rule should be - in conformity with the policy of the Governor of

H.M. Prison Peterhead (para. 20) - that prisoner's letters to the

applicant's solicitor or to the European Commission of Human Rights

should be sent unopened.  But even in these cases opening in the

presence of the prisoner without reading would not be contrary to any

fundamental human right of the prisoner.

        I share the opinion of the majority that Article 3 para. 2 (a)

of the European Agreement Relating to Persons Participating in

Proceedings of the European Commission and Court of Human Rights does

not affect the rights and obligations contained in Article 8 of the

Convention.  Nonetheless, that provision indicates that in 1969 the

Contracting States were of the opinion that the opening of prisoner's

letters was permissible.  It thus offers some clarification of the

intention of the drafters of the Convention.  As, however, the

Convention is a living instrument the interpretation of which may

change over time, that intention might be relevant but certainly not

decisive.

        Partially dissenting opinion of Sir Basil Hall joined by

        Mrs.  J. Liddy

        We find ourselves unable to agree with the view of the

Commission that the opening of general correspondence between a

prisoner and his solicitor cannot, in the absence of special

circumstances, be justified under Article 8 para. 2 of the Convention

as being necessary in a democratic society for the prevention of crime

and disorder.

        Solicitors in the United Kingdom carry out a wide range of

functions on behalf of their clients, functions in which they have no

monopoly.  Such correspondence may be of a highly confidential nature.

It can, however, cover a vast range of possible subjects from

traditional functions such as the drafting of wills and conveyances to

advice on financial and property matters, and even to the management

of land and other property.  We recall that in the SILVER case (Eur.

Court H.R., loc. cit., p. 39, para. 101) the stopping of a letter to a

solicitor was found to be justified, since it possibly related to the

disposal of the proceeds of a crime.

        Although subject to the supervision of their professional

governing bodies, not all solicitors apply the same standards when

requested to act on behalf of their clients, but more importantly use

may be made of them to convey information without their being aware of

its significance.

        We are therefore of the opinion, that the opening of general

correspondence from a solicitor is justified as being necessary in a

democratic society for the prevention of crime and disorder within the

meaning of Article 8 para. 2 of the Convention, and that the opening

of the applicant's correspondence for his solicitor was justified on

that basis in the present case.

                                Appendix I

                        HISTORY OF THE PROCEEDINGS

     Date                                  Item

________________________________________________________________

14.01.86                        Introduction of the application

05.02.88                        Registration of the application

Examination of admissibility

13.07.88                        Commission's deliberations and

                                decision to invite the Government

                                to submit observations in writing

01.12.88                        Government's observations

07.03.89                        Applicant's reply

12.05.89                        Further observations of the applicant

23.05.89                        Further observations of the Government

07.09.89                        Commission's further deliberations

                                and decision to invite the parties

                                to a hearing

08.11.89                        Hearing on admissibility and merits

                                The parties were represented as

                                follows:

                                Government:

                                Mr.  Michael Wood

                                Mr.  MacKay, QC

                                Mrs.  MacDonald (Scottish Office)

                                Mr.  Reeves (Scottish Home and Health

                                Department)

                                Applicant:

                                Mr.  John Carroll

08.11.89                        Commission's deliberations and

                                decision to declare the application

                                partly admissible and partly

                                inadmissible, and to examine further

                                the issue under Article 25 para. 1 of

                                the Convention

Examination of the merits

08.11.89                        Deliberations on the merits

05.02.90                        Applicant's observations on the merits

23.02.90                        Government's observations on the

                                merits

12.05.90                        Consideration of state of proceedings

05.07.90                        Commission's deliberations on the

                                merits

09.07.90                        Commission's deliberations on the

                                merits and final votes

12.07.90                        Commission's adoption of the Report