THE FACTS

The facts presented by the Parties and apparently not in dispute

between them may be summarised as follows:

The applicant is a citizen of the United Kingdom, a Welshman, born in

Cardiff in 1933. It appears from his correspondence that he is a member

of the Mudiad Amddiffyn Cymru, the so-called "Free Wales Army". He is

now held in H.M. Prison, Albany, on the Isle of Wight. In the

proceedings before the Commission he is now represented by B. & Co.,

Solicitors of London.

The applicant is serving a sentence of ten years' imprisonment imposed

at the Flint Assizes on .. April 1970 for a number of serious criminal

offenses involving the use of explosives. He originally complained to

the Commission about his prison sentence, about interference with his

correspondence and about his prison sentence, and about the fact that

he was classified as a "category A" prisoner and was, as such, unable

to earn parole. These complaints were declared inadmissible by a

Partial Decision of the Commission on 18 December 1972. (Not published)

The applicant's complaints about his sentence and about his

correspondence were held to be manifestly ill-founded, his complaint

about parole was held to be incompatible with the provisions of the

Convention. The Commission decided, however, to adjourn its examination

of the applicant's complaint that publications and newspapers had been

withheld from him on political grounds and this is the part of the

application which is now outstanding.

In August 1972 the applicant wrote to the Commission alleging that

certain publications and newspapers had been withheld from him on

political grounds. Between January and April 1972 he stated that he had

been refused "Le Peuple Breton" on .. January, "Irish Democrat" on ..

February, "Herald Cymraeg" on .. February, part of the "Sunday Express"

and "Tafod y Ddraig" on .. March and part of the "Sunday Express",

"Irish Democrat", "Tafod y Ddraig" and "Le Peuple Breton" on .. April.

He said that he had complained to the Board of Visitors who had stated

that the publications were "unsuitable". He stated that all the

periodicals in question "deal exclusively with politics."

Submissions of the Parties

Observations of the respondent Government (dated 30 April 1973)

Under the Prison Rules and prison practice a convicted prisoner may

receive personally in prison the following publications of his choice:

one daily newspaper every day; and one weekly newspaper every week

(e.g. a local paper); and two periodicals on current thought, or

hobbies, or the arts every week; and two religious periodicals every

week; and two technical or educational periodicals every week.

He may also have books he has bought or books from friends plus books

from the prison library and may read newspapers provided for the

general use of prisoners. Newspapers and periodicals may be ordered by

the prisoner of by his friends or relatives but publications must be

received direct from the publisher or a reputable newsagent. This

requirement is designed to prevent the smuggling of money, messages,

drugs, etc., and to avoid the necessity for inspecting each item.

Prisoners may receive newspapers or periodicals dealing with politics,

or publications in a language other than English, but foreign

publications must be received direct from a reputable newsagent in the

United Kingdom.

The above provisions are subject to Rule 33 (1) of the Prison Rules.

This enables the Home Secretary to impose restrictions with a view to

securing discipline and good order in the prison or the prevention of

crime. Hence a publication encouraging prisoners to use violence is

likely to be withheld from them. On the other hand a publication

advocating violence as part of a general system would not necessarily

be withheld; for example, Marxist publications have been permitted.

If a publication is sent to a prisoner by someone who is not a relative

or friend it is usually regarded as being sent for propaganda and the

Governor will refer the matter to the central prison department. He

will also refer to the central prison department the question whether

a particular issue of a newspaper or periodical would present a serious

threat to good order or discipline in the prison. There is no list of

named publications which are automatically withheld.

When someone sends a newspaper cutting to a prisoner, this is dealt

with as if it were a letter. Letters are normally permitted between a

prisoner and his relatives and friends but communications between

prisoners and persons whom he did not know before going to prison are

only permitted at the discretion of the Governor.

A prisoner may complain about his treatment to the Board of Prison

Visitors who are independent persons appointed by the Home Secretary.

After complaining to the Board of Visitors, it is open to the prisoner

to petition the Home Secretary.

A considerable amount of reading matter is addressed to prisoners. On

an average weekday Albany Prison receives about one hundred and fifty

newspapers, periodicals and books together with some two hundred

letters. These have to be checked to ensure that they comply with

prison rules and practice. From the records it has been possible to

ascertain that in the period January to April 1972, 147 copies of

newspapers and periodicals were received for the applicant of which ten

were withheld. But due to the lapse of time it has not always been

possible to identify the precise grounds on which a particular issue

may have been withheld or even dates given by the applicant do not

always correspond with the dates in the prison records.

Because of publicity given to the applicant, he has been sent a

considerable volume of correspondence and a considerable number of

publications by persons who were not known to him before he entered

prison.

"Le Peuple Breton" is a monthly magazine. Two copies were withheld from

the applicant on .. January and .. April 1972 because they were not

delivered direct from a newsagent in the United Kingdom.

"The Irish Democrat" is also a monthly magazine, published in England.

It was withheld on .. February. This issue contained a reference to the

applicant and the prison referred the matter to the central prison

department. The department replied that X. could receive the copy if

it had been properly ordered and received direct from the publisher or

a reputable newsagent and provided that he had not already received his

full allowance of periodicals. In the event, this edition was not

issued and it is assumed that one or both of these provisions applied.

The March issue of the "Irish Democrat" was withheld but the prison

records do not indicate the reason. It was probably stopped for one or

more of the reasons indicated in the prison department's reply (see

previous paragraph).

It seems that the April issue of the "Irish Democrat" was issued to the

applicant. It was first referred to the central prison department (as

being a potential threat to good order and discipline) and the

department authorised it to be issued subject to the usual conditions

of origin and non-infringement of quota.

"Tafod y Ddraig" ("Tongue of the Dragon") was withheld from the

applicant in January, February and March (not the dates given by the

applicant who speaks of .. March, .. March and .. April). This is a

monthly periodical by the Welsh Language Society. The January issue

contained an article "Cofiwch y Carcharoriom" ("Remember the

Prisoners"). It mentioned the applicant and urged readers to write to

him. It was referred to the central department but it was decided to

withhold the issue for reasons which are not now absolutely clear. It

seems that it was withheld either because sent for the purposes of

propaganda (see above) or because it was sent by someone previously

unknown to the applicant. The same considerations seem to apply to the

February and March editions. The April issue was delivered. The

political opinions expressed were not a reason for withholding the

issues and the fact that the applicant was mentioned was not a reason

because he was mentioned in the April issue.

The "Herald Cymraeg" is a weekly paper mostly in Welsh. The issue of

.. February was withheld because it was sent to the applicant, together

with a letter, by someone who had not previously corresponded with him.

It did not come from the publisher or a reputable newsagent.

Parts of the Sunday Express were sent to the applicant as newspaper

cuttings together with letters from a person whom he had not known

before entering prison. They were withheld on .. March and .. April.

The applicant appeared before the Board of Visitors at Albany Prison

on .. May 1972. He complained, inter alia, about the withholding of

newspapers and periodicals. It was explained to him why the

publications were withheld. He did not petition the Secretary of State.

It is submitted that the restriction and control under the Prison Rules

is consistent with (Article 10 of) the Convention. There is inherent

in physical confinement a restriction on the ability of a person to

receive and impart information - see Application No. 2749/66, de Courcy

v. the United Kingdom, Yearbook, Vol. 10, p. 388. The Commission has

also recognised that the State has a margin of appreciation in

determining the limits that may be placed on the freedom of expression

(Application No. 1167/61, Yearbook, Vol. 6, p. 204).

The practice of the United Kingdom authorities relates to the method

of access to reading matter and to its volume and content. The method

of access must be controlled to prevent the smuggling of messages,

money or drugs. As to volume, this is a question both of checking and

of good order. Prisoners must also be treated equally and rich

prisoners could not be allowed to swamp themselves with unlimited

quantities of periodicals. As to content, the authorities do not

withhold publications on political grounds. They may be withheld only

if this presents a serious threat to good order or discipline or if

sent for the propaganda purposes of the sender.

In the alternative the Government suggest that the measures taken were

justified under Article 10 (2) as being in the interests of public

safety and for the prevention of disorder or crime. The application is

therefore manifestly ill-founded or alternatively incompatible with the

provisions of the Convention.

In the further alternative, it is submitted that, insofar as the

applicant complains of political censorship, it was open to him to

petition the Secretary of State. He has petitioned the Secretary of

State about a variety of matters but never about this. This omission

constitutes a failure to exhaust the remedies open to him under English

law as required by Article 26 - see the de Courcy case (above) and

Application No. 4471/70, Taylor v. the United Kingdom. It is always

possible that the prison authorities sometimes make a mistake in

applying the rules set out above. In these circumstances it is

particularly apt that the applicant should complain first to the Home

Secretary before submitting a petition to the Commission.

The Government, therefore, request the Commission to declare the

application inadmissible as being either manifestly ill-founded, in the

alternative, for non-exhaustion of domestic remedies.

Observations of the applicant - presented by B. & Co. on 22 March 1974

The applicant submits that the United Kingdom authorities have hidden

their actions behind vaguely described administrative discretion. They

have cited only outline general rules and quote, as authoritative,

practices which they will not produce in any published form and which

the applicant will show have been applied differently in his case from

that of others.

Article 10

The United Kingdom Government cite a large number of rules or practices

in respect of newspapers, periodicals and correspondence which derive

their authority from Rule 4 of the Prison Rules and which may be

further varied under Rule 33 (1) by the Secretary of State with a view

to securing discipline and good order in the prison and for the

prevention of crime. If applied with consistency and for the reasons

given, many of these might constitute a valid application by the

Government of their right under Article 10 (2) to derogate from the

basic freedom to receive and impart information. But the applicant

considers that the erratic and irrational application of the rules in

his case makes the enjoyment of any rights under Article 10 a fragile

and unpredictable mockery.

Thus in response to the applicant's original complaint concerning the

seizure of ten items, the United Kingdom are able to give at this

stage, reasons why five only were withheld. Of these five, two were

copies of "Le Peuple Breton" and ostensibly contravened the prison

practice that foreign publications must be received direct from a

reputable newsagent in this country. The applicant has, however, both

before and since, received copies of the same magazine from the same

source, and there is no newsagent or distributor in this country. As

to the "Herald Cymraeg" the applicant points out that he had until

recently been receiving another weekly newspaper regularly from his

parents.

The publications stopped were all political. In respect of each the

applicant was informed at the time of refusal that it was "unsuitable"

and in respect of the issues of the "Irish Democrat" in particular that

they were "subversive". These categorisations were repeated by the

Board of Visitors when the applicant complained before them.

Furthermore, the Government can now only surmise at the reasons for

stopping the "Irish Democrat" and "Tafod y Ddraig". In view of the

exactness of the wording of Article 10 (2) and in view of Article 18

of the Convention, this is not satisfactory.

The United Kingdom Government base one of their arguments, about

inherent restrictions, on the de Courcy case but this case concerns

correspondence and correspondence cannot be equated with publications.

Publications are designed for a wide audience and if there is anything

offensive about them they should be prosecuted or dealt with as such.

No suggestion is made in the present case that the publications were

offensive.

The applicant submits that the rules and practices are too restrictive

under Article 10, but anyway he thinks that the detailed regulations

should be put forward in some printed form.

As to the Government's comments on the number of periodicals received

by the applicant during the relevant period, the applicant points out

that the seemingly generous quota consisted almost entirely of

subscriptions to a daily and a weekly newspaper.

Article 26 of the Convention

The applicant denies that he has failed to exhaust domestic remedies.

He did petition the Board of Visitors and the Government now suggest

that he should have then pursued the alternative course of petitioning

the Home Secretary. He does not consider that this is a viable

alternative. In fact he did petition the Home Secretary about "Le

Peuple Breton" on .. September 1973. The Home Office rejected his

petition on the ground that "You may receive foreign newspapers,

periodicals and other publications providing they conform to the prison

regulations and are sent direct from a reputable newsagent in this

country". This rejection is dated .. October 1973.

The applicant also points out that it is for the respondent Government

to show that a remedy exists (Pfunders case Application No. 788/60) and

that such remedy should be "in principle capable of providing an

effective and sufficient means of redress". (Nielsen case Yearbook,

Vol. 2, p. 436). A "grace and favour" decision is not a remedy. The

applicant would also suggest that in view of the capricious application

of unpublished rules as to  his particular case, no satisfactory remedy

can exist and that he, as a prisoner with a strong political viewpoint

is permanently at risk from political censorship disguised as standard

practice.

Even since his application to the Commission the applicant has been the

victim of censorship - despite complaints to the Board of Visitors and

to the Secretary of State. At Christmas 1973 he was sent six books of

which one was stopped. This was stopped on the official ground that it

was sent by someone who had not known him before he entered prison.

Yet, in fact, this ground was applicable to the five others. The

stopped book was "Selected Writings of James Connelly" (sent by Padraic

O'Conchuir) and the real ground for stopping it was political. The

applicant maintains that there was no effective remedy. On the contrary

there was an administrative practice of censorship.

Article 14 of the Convention

Even if the Government were able to justify their actions under Article

10 (2) read alone, they have used the restrictions for a purpose for

which they are not justified. Apart from this, other prisoners are

allowed to have publications which do not conform to the rules invoked.

Thus the rule about foreign publications which is applied occasionally

against his "Le Peuple Breton" is never applied to the "National

Geographic Magazine" also sent from abroad.

The applicant would therefore submit that the United Kingdom Government

are by far exceeding any margin of appreciation allowed to them under

Article 10 and are also clearly violating Article 14.

THE LAW

The applicant states that, since he has been detained in prison, he has

been refused a number of magazines and periodicals. He claims that he

has been the victim of political censorship. The Commission has

examined this complaint in the light of Article 10 (Art. 10).

The respondent Government have submitted in their written observations

that every prisoner is allowed a number of publications of his choice,

provided he orders them and receives them regularly from a recognised

source. He is allowed one newspaper every day, and up to seven further

periodicals every week, if he uses his maximum allowance. The applicant

has never denied that this allowance is properly applied. The present

case does not concern the stopping of periodicals within the official

allowance but the stopping of periodicals which were outside the

allowance, either because they came from unauthorised sources or

because they were beyond the applicant's numerical entitlement. The

applicant is saying that sometimes he has been allowed periodicals

above and beyond the official allowance while sometimes they have been

stopped. He says that the other prisoners have been allowed periodicals

from other than recognised sources while his own periodicals from

unrecognised sources have often been stopped.

The Commission considers that the basic allowance is quite adequate and

not ungenerous. Furthermore, it is easy to see why the rules are

imposed and also reasonably easy to see why in some cases they are

relaxed. Although there is a general rule against prisoners receiving

magazines direct from sources outside the United Kingdom, this rule

seems not to be applied to well-known English Language publications

like the National Geographic Magazine. But the essence of the

applicant's case is that he wishes to receive periodicals, which are

generally in a language other than English, from sources that the

prison authorities cannot easily check. He has never really explained

why he cannot receive these periodicals from an authorised source;

there must be newsagents in the United Kingdom who distribute material

in Welsh and French.

What the applicant is really saying is that he does not want to use up

his ordinary entitlement with regular copies of these magazines. He

wants occasional copies sent to him from unrecognised sources. This

naturally places a considerable strain on the prison authorities for

possible messages, etc. Even assuming that X. can read Welsh and French

(and his background makes this doubtful), and even assuming that he is

not being "difficult", the Commission considers that he is asking for

more than his entitlement under Article 10.

Article 10 (2) (Art. 10-2) of the Convention allows restrictions on the

right to receive information if such restrictions are prescribed by law

(see Rule 33 of the Prison Rules) and are necessary in a democratic

society for the prevention of disorder or crime. The Commission

considers that the restrictions in the present case fall well within

this definition. They appear to be designed to prevent the passing of

messages (and other material) to prisoners and to make it possible to

check incoming material without putting any unnecessary burden on

prison staff.

The Commission attaches no particular importance to the fact that after

a considerable lapse of time the authorities cannot always account for

the exact reason for the stopping of a particular item. As explained

above, there is no suggestion in this case that the applicant was not

allowed to have all his magazines within the normal allowance. The

Commission does not consider that - having regard to the rules as set

out - there is any burden of proof on the authorities to keep detailed

records explaining why periodicals outside the quota were stopped.

The Commission has held in previous cases (see e.g. application no.

2749/66, Yearbook, Vol. 10, p. 388) that a numerical limitation on a

prisoner's correspondence (or entitlement to reading matter) does not

as such infringe the provisions of Article 8 (or Article 10)

(Art. 8, 10). The finding in the present case is in conformity with

this principle.

An examination of this complaint as it has been submitted including an

examination made ex officio, does not therefore disclose any appearance

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

in particular in the above Article.

It follows that the remaining part of the application is manifestly

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

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

APPLICATION INADMISSIBLE