THE FACTS

The applicant is a citizen of the United Kingdom, born in 1922, and at

present detained in W. Prison, Yorkshire. He is represented before the

Commission by Mr. B., a solicitor practising in Leeds.

1. The applicant lodged two previous applications with the Commission.

In the first, No. 2759/66, he submitted the following facts. In

February 1955 he was convicted of rape and sentenced to 10 years'

imprisonment. In July 1955 the Court of Criminal Appeal changed the

sentence to one of life imprisonment. He was detained in prison until

February 1964, when he was released on licence until July 1964. He was

then returned to prison but again released on licence in May 1966.

In that application he made the following complaints:  that he had been

improperly convicted, that his sentence had been improperly increased,

that he had been refused a retrial, that the Home Secretary had refused

to disclose the medical reports on him prepared during the period of

his imprisonment (all of which - he said - stated that he was sane) and

that his private life had been interfered with.

On 10 July 1967 the Commission declared the application inadmissible

(1). The applicant's complaints concerning conviction and sentence were

found to be outside the competence of the Commission ratione temporis.

His complaint that he had not been allowed a retrial was held to be

outside the competence of the Commission ratione materiae and so was

his complaint concerning the failure to supply him with the medical

reports. The complaint of interference with his private life was held

to be manifestly ill-founded.

-----------------------------

(1)  Decision not published.

-----------------------------

2. In this second application No. 5170/71, the applicant submitted the

following facts. He was again in prison, apparently because he had

broken the terms of his release on licence by leaving the United

Kingdom for Ireland. He stated that his imprisonment was continued

because of a false report which stated that he was a psychopath and he

claimed that this report prevented the Parole Board from giving his

case impartial consideration and so being able to order his release.

The applicant stated further that he wished to obtain an independent

specialist examination to determine his mental condition. With this in

view he had attempted to send copies of the allegedly false medical

report to various people including a solicitor, but his letters to

these persons had been suppressed or delayed.

He complained to the Commission that he was held in prison on a life

sentence and that because of a false report concerning his mental state

he could not be released on parole. He also complained of interference

with his correspondence.

On 29 May 1972 the Commission declared the application inadmissible

(1). All the complaints were held to be manifestly ill-founded.

-----------------------------

(1)  Decision not published.

-----------------------------

3. In his present application the applicant again repeated his

complaint about being unable to obtain the disclosure of certain

official medical reports which he claimed would show that he was sane.

He also repeated his complaint that he was not able to obtain a

psychiatric examination by an independent specialist. As both these

complaints had been included in the applicant's previous applications

they were declared inadmissible by a Partial Decision of the Commission

on 10 July 1973 (1). At the same time, however, the Commission decided

to communicate to the United Kingdom Government for their written

observations on admissibility the applicant's complaint that there had

been interference with his correspondence by the prison authorities and

in particular that there had been suppression of letters to the Law

Society when the applicant was seeking legal aid to bring proceedings.

The Commission decided not to communicate for observations on

admissibility the applicant's complaint that he was prevented from

applying to the court for an order of Certiorari against the Parole

Board but to ask the Government to give further information about the

facts relevant to this complaint. It, therefore, asked the Government

to inform it of the circumstances in which the Parole Board had refused

to recommend the applicant's release and the reasons for the Parole

Board's decision.

The Commission decided to take no action in respect of an allegation

by the applicant that he had been hindered in the presentation of his

application to the Commission in not being allowed to submit a typed

application form.

4. The facts of (the remaining part of) the present application

presented by the Parties and apparently not in dispute between them may

be summarised as follows:

On .. February 1955 at the York Assizes the applicant was convicted of

indecent assault and rape of an eleven year old schoolgirl and was

sentenced to ten years' imprisonment. He maintained (and still

maintains) that he was not guilty but he was refused leave to appeal

against his conviction. He was, however, granted leave to appeal

against his sentence and appeared before the Court of Appeal. That

court, instead of reducing the sentence as the applicant had hoped,

changed it to one of life imprisonment. The Lord Chief Justice who

presided at the hearing took note that the applicant already had a

criminal record which included arson and sending explosives through the

post and that he had previously been detained in B. The applicant says

that this was quite unjust because there had been no suggestion that

he was suffering from mental illness in 1955. He had been in B. (a

special hospital for criminal lunatics) from 1947 until 1949 but the

applicant maintains that he was never insane. Although he was found

"guilty but insane" in 1947 he was never able to appeal against this

verdict because technically it was an acquittal and, at the time, there

was no appeal against it. It seems that the law was subsequently

changed and that such a verdict would now be open to appeal.

The applicant served nine years of his life sentence. He seems at all

times to have maintained that he was mentally normal and in 1963 a

petition was prepared on his behalf for presentation to the House of

Lords. Early in 1964 he was released on licence, then shortly after his

release he was recalled to prison for allegedly refusing to co-operate

with his supervisory officer. He was again released on licence in May

1966 but was then convicted of assault and theft and had to serve

another sentence of six months. In November 1966 he was released on

licence (the same licence as had been imposed in May) but in August

1967 the police were investigating an alleged indecent assault by the

applicant when he went to Ireland. He was arrested in Dublin, brought

back to England and on .. March 1968 he was sentenced at the York

Assizes to nine months' imprisonment for the indecent assault. When

this sentence ended the Parole Board reviewed his case but did not

recommend his release on licence. His detention (life sentence),

therefore continued.

Section 61 of the Criminal Justice Act 1967 allows the Secretary of

State to release on licence a prisoner who has been sentenced to life

imprisonment. But he may only do this after consulting with the Lord

Chief Justice and the trial judge, if available, and after a

recommendation by the Parole Board. If the Parole Board does not

recommend the prisoner's release the Home Secretary cannot order it,

but if the Parole Board does recommend the release the Home Secretary

may still refuse it. The Home Secretary may revoke a prisoner's licence

and recall him to prison under Section 62 of the Act but if the Parole

Board then recommends his immediate release, he must be released

(Section 62 (5)).

The Parole Board examined the applicant's case again in March 1970. It

wanted to have an electro-encephalogram made on applicant but he

refused. He said that it would be superfluous and he considered his

confinement illegal. The Board decided not to recommend release on

licence in June 1970 and came to the same decision in 1971 and 1972.

It will next review the case during the course of 1974. The applicant

maintains that there is a false medical report circulating which states

- incorrectly - that he maintains an unhealthy interest in young boys.

The applicant states that this is not true and he would like to be

examined by independent medical experts.

On .. June 1972 the applicant wrote to the Law Society saying that he

would like to apply to the Divisional Court of the Queen's Bench for

an order of Certiorari requiring the Parole Board to order his release.

He sent similar letters to the Master of the Crown Officer, the

Official Solicitor, the National Council for Civil Liberties, "Justice"

and his Member of Parliament. On .. June the Prison Governor was

informed by the Home Office that the letters should be stopped. The

Home Office considered that they were an attempt to commence legal

action. The applicant was to be told that if he wished to commence

legal action he should consult a solicitor and if the solicitor thought

that he had ground for action the matter would then be considered to

see if he should be allowed to proceed. On .. June the applicant

petitioned for leave to seek legal advice and was sent the following

reply (on .. June):

"The Secretary of State has fully considered your petition. You may use

one of your ordinary letters to seek legal advice and if you are

advised that you have grounds for action, you may petition again when

it will be decided whether or not you should be allowed to proceed."

The applicant wrote to his solicitor who replied on .. July 1972 saying

that it would be just for permission to be granted to him to bring

proceedings for the order he was seeking. He added that as the matter

was complex, success depended on the grant of legal aid. On .. July the

applicant wrote to the Law Society and applied for legal aid. This

letter was stopped by the prison authorities on the ground that the

applicant had not sought the permission of the Secretary of State to

proceed with his action.

On .. August the applicant again petitioned the Secretary of State

saying that he had a right to apply to the courts for an order of

Certiorari and that he had a right to apply to the Law Society for

legal aid and to correspond with the persons with whom he had tried to

correspond in June. But he did not state that he had been advised that

he had grounds for bringing legal proceedings nor did he submit any

evidence of such advice. The applicant petitioned again on .. September

and .. October 1972. On .. April 1973 the applicant's petition was

refused in the following terms:

"The Secretary of State has fully considered your petition but can find

no ground for taking any action in regard to it. The Secretary has

nothing to add to his reply to your petition dated .. June 1972

regarding the writ of Certiorari."

On .. October 1972 the applicant's solicitor wrote to him saying that

it was necessary for him to petition the Home Secretary for permission

to institute proceedings or at least seek legal advice on the question

of Certiorari. The solicitor also wrote at the same time to the Home

Secretary saying that he had advised the applicant to petition about

the proposed legal action and asking to be informed as to the Secretary

of State's attitude. On .. April 1973, the Home Office replied,

informing the solicitor that the applicant had already been told on ..

June 1972 that he could take legal advice and that if he was advised

that he had grounds for action he might submit a petition when it would

be decided whether or not he should be allowed to proceed. On .. May

1973 the solicitor wrote to the Home Office saying that in his opinion

the applicant had grounds for proceeding with his application for a

writ of Certiorari against the Parole Board. On .. June 1973 the Home

Office wrote to the solicitor asking him to give details of the nature

of these grounds. The solicitor replied on .. October 1973 and set out

the grounds on which the applicant relied:

"In relation to Mr. X. of H.M. Prison W., we now have pleasure in

informing you of the grounds which Mr. X. relies on for his application

for a writ of Certiorari: -

1. That the Court of Appeal in 1955 improperly presumed that Mr. X. was

mentally unstable, on which occasion they substituted for a 10 year

sentence, a life sentence.

2. That the medical evidence, according to Mr. X., is that he is of

sound mind and suffering from no mental disorder affecting his conduct.

3. That he has been given no opportunity of disputing this presumption

that he suffers from some form of mental disorder.

We look forward to hearing from you in due course.".

(This letter was written almost exactly the time when the Government

were filing their original written observations on admissibility. These

observations were sent on 23 October). The Home Office wrote back on

.. November:

"The Secretary of State has considered the grounds put forward in your

letter on which Mr. X. relies on for his application for a writ of

Certiorari against the Parole Board and has decided that he does not

wish to object to an application being made to the court on Mr. X.'s

behalf.".

On .. October 1972 the applicant wrote to his solicitor enclosing a

copy of the letter he had written to the Law Society on .. July 1972.

The Assistant Governor of the prison saw the applicant and explained

that he could not send out a copy of a stopped letter. He could,

therefore, remove the enclosure and omit all reference to it and he

would then be allowed to send the letter to his solicitor. The

applicant refused to speak to the Assistant Governor, who, in the end,

allowed the letter to be sent without the enclosure.

In October 1972 the applicant complained through his Member of

Parliament to the Parliamentary Commissioner saying the Home Office had

interfered with his attempts to take legal proceedings. The

Parliamentary Commissioner found that there was no basis for the

applicant's complaint and expressed himself satisfied that the Home

Office had acted in accordance with the Prison Rules and that the

reason the applicant's letters were stopped was that he had failed to

comply with the required procedure.

Complaints

The applicant complained that the prison authorities interfered with

his correspondence and, in particular, that they at one time prevented

him from writing to the Law Society when he sought legal aid in order

to begin proceedings to get a writ of Certiorari.

SUBMISSIONS OF THE PARTIES

OBSERVATIONS OF THE GOVERNMENT (October 1973)

I. Prisoners' Communications

The Prison Rules 1964, made by the Secretary of State under Section 47

of the Prison Act 1952, place certain restrictions on communications

between prisoners and other persons. Rule 34 sets out various

entitlements of a prisoner in relation to the sending and receipt of

letters but Rule 34 (8) provides that a prisoner shall not be entitled

to communicate with any person in connection with any legal or other

business, or with any person other than a relation or friend, except

with the leave of the Secretary of State.

A prisoner who wishes to discuss a legal action with a solicitor must,

therefore, obtain the permission of the Secretary of State before

communicating with him. In deciding whether or not to grant leave, the

Secretary of State takes into account the extent to which the

particulars contained in the request reveal a possible cause of action.

Leave will not normally be granted if the particulars are insufficient

to indicate the precise nature of the complaint but in this case the

prisoner is normally invited to submit further particulars.

II. Release on Licence

The Criminal Justice Act 1967 enables the Secretary of State to release

prisoners on licence before their term of imprisonment expires. The

Secretary of State may only release a life prisoner if recommended to

do so by the Parole Board which is an independent body constituted

under the Act. If a life prisoner is released and then recalled to

prison, the Secretary of State is obliged to release him once the

Parole Board recommends that this is done.

Prisons also have local Review Committees which examine the suitability

of prisoners for release on licence. These Committees consist of the

prison Governor and at least four other persons appointed by the

Secretary of State. It has been the practice of the Secretary of State

to refer cases of prisoners on life sentences to the Review Committee

after they have served seven years. The practice was changed recently

and the present practice is to send a case to the Parole Board when a

life prisoner has served about four years, a decision is then reached

on when the case should be referred to the local Review Committee.

III. Consideration of Admissibility

The respondent Government submit that the United Kingdom practice

concerning communications by prisoners is consistent with the

Convention. Detention in prison necessarily involves a deprivation of

liberty going beyond the mere fact of confinement (the Government refer

to application No. 892/60, 4 YB, p. 240 - the German marriage case -

and to application No. 2749/66, 10 YB, p. 388 - de Courcy v. the United

Kingdom, Final Decision). The artificial atmosphere in prison leads

some prisoners to labour under imaginary grievances, others would like

to pass the time in litigation while a third category see litigation

as a way of striking back at the authorities or circumventing prison

discipline. Article 8 leaves to States a margin of appreciation in its

application and the above considerations should be noted when examining

the system of control provided by Rules 33 and 34 (8) of the Prison

Rules.

In particular it should be noted that the correspondence in the present

case related to the conditional release of a prisoner - this is not a

right guaranteed by the Convention (application No. 1760/63, 9 YB, p.

166). The respondent Government, therefore, submit that the application

is, in this respect, manifestly ill-founded.

Alternatively the Government submit that such restrictions as are

provided by the Prison Rules and practice are permitted by Article 8

(2). In this respect the Government refer to the decision of the

European Court of Human Rights in the Vagrancy cases.

In the further alternative, the Government submit that the applicant's

correspondence was stopped because he failed to follow the correct

procedure indicated to him by the Secretary of State. He thus failed

to comply with the requirements of Article 26 of the Convention that

all domestic remedies should be exhausted. In support of this further

submission, the Government refer the Commission to its Final Decision

on the admissibility of application No. 2749/66, de Courcy v. the

United Kingdom (10 YB, p. 388, at p. 410) and to its Final Decision on

the admissibility of application No. 4471/70, Y v. the United Kingdom.

Lastly (letter of 4 December 1973 from Government Agent to Commission's

Secretary) the Government explain that the applicant's solicitor has

now set out the grounds upon which the applicant relies for his

application for a writ of Certiorari. He did this in a letter dated ..

October 1973. The Home Office replied on .. November saying that the

Home Secretary would not object to the making of an application for a

writ of Certiorari. In view of these developments, the Government

submit that the applicant cannot be considered a victim of a violation

of the Convention and accordingly the application has lost its

pertinence.

The Government submit that the application is manifestly ill-founded,

or alternatively that it is inadmissible for non-exhaustion of domestic

remedies, or alternatively that it has lost its pertinence.

IV.  Parole Board's decision

When the above case was communicated to the Government, the Commission,

besides asking for observations on admissibility in regard to

allegations under Article 8, also sought information on the

circumstances in which the Parole Board refused to recommend the

applicant's release and on the reasons for the Board's decision.

As already explained, the Parole Board is an independent statutory body

whose function is to advise the Home Secretary on matters connected

with the release on licence and the recall of prisoners. Its functions

are advisory and it has no power to order the release of a prisoner,

although the Home Secretary cannot usually release prisoners on licence

unless the Board so recommends. The Board is not obliged to give

reasons for its recommendations and it gave no reasons in the

applicant's case.

As regards the circumstances in which the Board refused to recommend

the applicant's release, the Board would of course have had before it

the applicant's past history going back to his detention in B. in 1947

following his conviction for theft and sending explosives through the

post.

OBSERVATIONS OF THE APPLICANT (7 December 1973)

(Although the applicant has the assistance of a solicitor and has been

granted legal aid, he drafted his own observations in reply to the

Government and these were forwarded to the Commission in his own

handwriting).

Background

The applicant explains that he was originally sent to B. in 1947 after

being found "guilty but insane". As this was technically a verdict of

"not guilty" he could not appeal against it. He was released in 1949.

In 1955 he was accused of rape - again he denied his guilt. At his

trial his mental stability was at no time called into question. The

Court of Appeal changed his sentence to one of life imprisonment

without having any good reason to suspect that he was mentally

unstable. At no time has he ever had treatment for mental disorder

while in detention. He was released on licence in 1964 but was then

harassed by the police who kept coming to his place of work and asking

questions about brutal murders. To escape the harassment he changed his

address and the Home Office then revoked his licence. The applicant was

again released in 1966 (after prior medical reports stated that he was

not mentally disordered) but sent back to prison for allegedly trying

to strangle a policeman. When he was next released he found that the

police were trying to harass him and so he decided to go to Ireland.

According to the applicant, it was not a condition of his licence that

he should remain in the United Kingdom. He was arrested, brought back

to England, convicted of indecently assaulting a young boy and has been

in prison ever since. The sentence imposed upon him for the indecent

assault was only nine months in prison and he finished that sentence

in August 1968. Since then he has been detained on the life sentence.

In 1970 the applicant complained to the Board of Visitors about a

medical report which he considered was both false and prejudicial.

Nevertheless, the Home Secretary refused to disclose medical reports

in his possession or to allow the applicant to be examined by

independent experts. The applicant maintains that the Home Office do

not wish his mental condition to be properly determined and that they

had at various times made incorrect and defamatory statements for which

there was no good cause. The Home Office is now keeping the applicant

detained on the wholly incorrect assumption that he is mentally

unstable.

The applicant agrees that he has refused to have an

electro-encephalogram made, but this was because the medical reports

showed he was completely normal and he considered that an

electro-encephalogram was completely superfluous. The Home Office would

not disclose the medical reports showing that he was normal and refused

to allow him to be examined by independent specialists. He was also

kept in prison whereas had he really been mentally unstable he should

have been kept in a special mental home.

Reply to Government's Arguments

The applicant maintains that the letters he wrote, which were

suppressed by the prison authorities, were a statutory entitlement.

They were written to persons of good repute and in no way offended

against good order or discipline or constituted any incitement to crime

and their sole purpose was to secure justice - a point of no importance

to the Home Office.

The applicant does not accept that the Home Secretary has any right to

put his office above the law in deciding whether or not to grant a

request for legal advice. On .. June 1972 the Home Office told the

applicant that he could use one of his ordinary letters to seek legal

advice and that if he were advised that he had grounds for action, he

could petition again, when it would be decided or not that he should

be allowed to proceed. But he was not allowed to apply for legal aid

under the Legal Aid and Advice Acts and his letters applying for legal

aid were suppressed. It was incorrect to say, as the respondent

Government now said, that the letters which were stopped could be

regarded as an attempt to commence legal action. No legal action could

possibly be instituted on the basis of such letters. It is clear that

the Home Office were obstructing the applicant's attempts to obtain

justice from the way that they delayed until April 1973 before replying

to three of his petitions. The Home Office knew (by implication) from

the applicant's petitions of August, September and October 1972 that

he had been advised that he could go ahead with his application for a

writ of Certiorari.

The applicant also states that letters to his Member of Parliament were

stopped but does not give details.

Stopping of letters from the Applicant to his Solicitor

When the applicant's case had been communicated to the Government and

the applicant had the assistance of a solicitor, the applicant

continued to write to the Commission saying that letters to his

solicitor were being stopped. The Commission's Secretary wrote to the

solicitor to enquire about this and he replied (letter of .. August

1973):

"Thank you for your letter of 14 August 1973. Mr. X. is permitted to

write to me; I have received innumerable letters from him of late.".

Final Point

When the applicant and his solicitor were informed (November 1973) that

he would, after all, be permitted to take proceedings to try to obtain

a writ of Certiorari, the solicitor commenced as follows (letter to

Secretary dated .. February 1974):

"... Whilst it is true that Mr. X. was granted permission to make an

application for a writ of Certiorari, since that date Mr. X. has been

refused legal aid to make such an application in the English Courts.

This, in fact, prevents him from making such an application, as he has

not got the necessary finance involved in such an application.".

THE LAW

I.   Insofar as the applicant now wishes to complain that he was not

able to obtain an order of Certiorari against the Parole Board, the

Commission has examined this complaint under Article 6 (Art. 6) of the

Convention. This article provides that "In the determination of his

civil rights and obligations or of any criminal charge against him,

everyone is entitled to a fair .... hearing within a reasonable time

by an ... impartial tribunal ...".

Nevertheless, having carefully examined the facts of the case, the

Commission has come to the conclusion that the order of Certiorari in

question related neither to a civil right (or obligation) nor to a

criminal charge. The proceedings which the applicant wanted to

institute were of an administrative nature and could not come within

the scope of Article 6 (Art. 6). It does not seem that any other

article of the Convention could be considered relevant and the

Commission recalls that, under Article 25 (1) (Art. 25-1) of the

Convention, it is only the alleged violation of one of the rights and

freedoms set out in the Convention that can be the subject of an

application presented by a person, non-governmental organisation or

group of individuals. The Commission has in many previous decisions

held that there is no right under the Convention to institute

administrative proceedings and has also held that there is no right

under the Convention for a convicted prisoner in England to apply for

the prerogative writ of Habeas Corpus (see application No. 3076/67 and

application No. 3505/68, Collection of Decisions, Vol. 29, p. 60).

Certiorari, like Habeas Corpus, is a prerogative order of an

administrative nature and similar reasoning applies.

It follows that this part of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27, paragraph (2) (Art. 27-2), of the Convention.

II.  The same ground of inadmissibility applies to any complaint made

by the applicant to the effect that he was not granted legal aid to

assist him in making his application for Certiorari. Article 6 (3) (c)

(Art. 6-3-c) of the Convention refers specifically to the grant of

legal aid but for someone "charged with a criminal offence". Legal aid

may also sometimes be relevant to the concept of a "fair hearing" under

Article 6 (1) (Art. 6-1) of the Convention, but neither Article 6 (3)

(c) (Art. 6-3-c) nor Article 6 (1) (Art. 6-1) can relate to

administrative proceedings. Any complaint about failure to grant legal

aid for administrative proceedings must be incompatible ratione

materiae with the provisions of the Convention (see again application

No. 3076/67).

III. Insofar as the applicant wishes to complain that the authorities

have interfered with his correspondence, the Commission has examined

this complaint in the light of Article 8 (Art. 8).

Article 8 (1) (Art. 8-1) provides that "Everyone has the right to

respect for his ... correspondence" while Article 8 (2) (Art. 8-2)

provides that "There shall be no interference ... with the exercise of

this right such as is in accordance with the law and is necessary ...

for the prevention of disorder or crime".

In the present case the applicant has not shown that he was ultimately

prevented from writing to anyone. When he originally tried to begin

proceedings to obtain an order of Certiorari, he was told that he

should proceed in a certain way. Provided he followed the stipulated

procedure, he would be allowed to send out his letters. The applicant

failed, at various stages, to follow the procedure laid down and his

letters were stopped. But, as soon as he did as he was instructed, his

letters were allowed to pass. In the end he was allowed to write both

to his solicitor and to the Law Society. The procedure fixed by the

Home Office was in accordance with the law (the Prison Rules) and was

a control procedure justified for the prevention of disorder or crime

within the meaning of Article 8 (2) (Art. 8-2).

It is true that such a procedure could be abused by the authorities and

might thus raise a serious question as to whether there had been any

appearance of a violation of the rights and freedoms set out in the

Convention and in particular in Article 8 (Art. 8).

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2), of the

Convention.

For these reasons, the Commission DECLARES THE REMAINING PART OF THIS

APPLICATION INADMISSIBLE