THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42117/98 by James BOLLAN, Anne BOLLAN and Stephanie BOLLAN against the United Kingdom

The European Court of Human Rights ( Third Section ), sitting on 4 May 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 9 March 1998 and registered on 9 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first and second applicants are British citizens, born in 1947 and 1948 respectively, and live in Alexandria, Scotland. The third applicant is a British citizen born in 1994 and lives at the same address as the first and second applicant. The first applicant was the stepfather of Angela Bollan , the second applicant was her mother and the third applicant her daughter.

The applicants are represented before the Court by Cairns Brown, solicitors practising in Dumbarton, Scotland.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Angela Bollan was born on 5 March 1977. She died, aged 19, on 26 April 1996 from asphyxia caused by self-suspension whilst on remand at HM Prison Cornton Vale (“ Cornton Vale”) awaiting sentence for an offence of theft.

Angela Bollan was a heroin addict by the time she gave birth to her daughter, the third applicant, on 2 September 1994. As she was unable to care for the child, the third applicant lived with her grandparents. Until the age of 16, she lived with the first and second applicant, after which she moved out to live with friends. She was given the tenancy of a local authority house next door to the first and second applicants. She kept in close touch with them and the third applicant.

Angela Bollan had a number of convictions for shoplifting and breach of the peace, and had passed several spells in drug rehabilitation clinics. She had been held on remand in Cornton Vale on three occasions prior to her final remand on 15 April 1996 - 9 February 1995 to 24 February 1995, 5 February to 6 February 1996, and 27 February 1996 to 19 March 1996. In December 1995, the deceased went to a drug rehabilitation centre but she left after 3 weeks before completing the programme. In March 1996, she was readmitted to the centre and stayed until 9 April 1996 when she again left early.

On 12 April 1996, Angela Bollan was arrested on charges of theft and vandalism. On appearance at Glasgow District Court on 15 April 1996, she pleaded guilty and was remanded in custody for Social Enquiry Reports. She was due back in court on 3 May 1996 for sentencing. She was remanded in Cornton Vale in the block used for remand prisoners.

On arrival in Cornton Vale, Angela Bollan was seen by a nurse. She was seen by a doctor on the day after admission and assessed again. According to the Prevention of Suicide Policy, each prisoner on admission is assessed as to the likelihood of being suicidal. Angela Bollan claimed, as on previous admissions, that she had taken heroin and was vulnerable to withdrawal symptoms. She was prescribed the relevant medicine. She was not found to present any risks of suicide.

On 26 April 1996, Angela Bollan was woken up in the normal way by a prison officer at about 7.15 a.m. She was allowed out of her cell for breakfast and to go to the toilet and wash. Afterwards, she was asked to clean a corridor. The prison officer asked her to do it again properly. She complied. She was then locked in her cell again. The mail for the unit was distributed. There was none for Angela Bollan . She did not go that morning to the medical officer to receive her medication, diazepam, a drug substitute.

From 10.00 a.m., prisoners who wished were taken under supervision to the canteen to make purchases. Angela Bollan had no money and remained in her cell as was the routine. Generally, when prisoners were brought back from the canteen, they were placed under supervision in the sitting room where they were joined by prisoners brought from their cells for the period immediately preceding lunch.

At about 11.10 a.m. the deceased started kicking her cell door. Prison Officer Taylor asked what was wrong and she said she wanted to know why she could not get out of her cell. Prison Officer Taylor explained she would get out when there was enough staff back from canteen escort duty. As he walked away, she kicked the door a couple of times. He returned and told her she would be kept in the cell for a bit longer for kicking the door again. Angela Bollan replied, “That’s fine”.

At 11.30 a.m. Prison Officer Taylor met the Residential Officer for Angela Bollan’s unit and told him about her behaviour. He was concerned as this was not like her usual behaviour but did not consider it a serious situation. He did not think that it amounted to a disciplinary offence and did not tell her that she was being punished. The Residential Officer went up to Angela Bollan’s cell and found her lying on her bunk. He told her that she would remain in her cell until she calmed down, probably until the midday meal was ready. He told her that she would not be put on report. Angela Bollan shrugged her shoulders, seemed angry and tense but did not say anything in reply. The Residential Officer returned to his office and was then called to another unit soon after midday. He did not mention Angela Bollan to his supervisor or anyone else. He overlooked her.

Later, after 12.30 p.m., Prison Officer Taylor was serving dinners to the inmates and noticed towards the end of lunch that he had not seen Angela Bollan come for lunch. He went to her cell at about 12.50 p.m., unlocked the door and found her hanging from the window. The subsequent attempts at resuscitation failed and Angela Bollan was declared dead at about 1.24 p.m.

Angela Bollan had not previously been involved in disciplinary incidents in the prison.

In a period of two years, there had been six suicides in Cornton Vale and therefore, in January 1997, the Procurator Fiscal set up a Fatal Accident Inquiry which was delayed due to a further suicide at the prison. The inquiry lasted 36 days and the determination by the Sheriff was dated 18 November 1997.

The Sheriff found the cause of death of Angela Bollan to be asphyxia due to hanging, and the verdict was suicide. The Sheriff did not make any determination about the reasonable precautions whereby her death might have been avoided, nor about any defects in the prison system which contributed to her death. The Sheriff did however make various general determinations in respect of the systems in place at the prison, including proposals for improving procedures to prevent suicide which were relevant to the other cases under consideration.

In his determination the Sheriff stated:

“The weight of the evidence was clearly that Bollan > was forward looking, expressed a desire to obtain a house for herself and her child and gave no indication that she had any desire or impulse to kill herself. ...

... It was ... accepted by that certainly up until the final day of her life Bollan > did not present as a likely person to commit suicide ...

Looking at the evidence as to what did it is clear that it did not amount to a breach of discipline meriting a report to the Governor. If that is correct then would argue that the Officers were at fault in keeping in her cell at a time when other prisoners were in free association. The two officers did not consider they were operating in terms of the Rules ... .What they did say they were doing was giving her a “cooling-off period”. ...

It was a practice whereby somebody who created a scene or a fuss which of itself did not merit a Governor’s report was left in her cell or put in her cell for a short period to calm down. It was not part of any official code of practice ... It was known to the Governor and Assistant Governor. They accepted it as a necessary part of the discretion in each Officer in carrying out his or her duties of control.

On one view was not locked up for operational reasons, for example in the course of a security alert. On the other hand if cooling-off was used as a tool by Officers to quell situations and calm people down then in my view it was a valid exercise of the Governor’s powers exercised through the Prison Officers. The evidence from the Officers was not clear. They changed from a cooling-off period through an alternative to a Report to a punishment. I fully accept that Officers might in the course of their duties have to put prisoners in cells for disciplinary reasons to keep order and so on. It may be a fine distinction but it is one which in my view has to be made. I am of the view that Prison Officers do not have the power to mete out punishment. They do not in my mind have the right to impose periods behind doors as a punishment for some minor infraction of the Rules. It is one thing to say to a prisoner: “Now I’m going to keep you in your cell for a bit to let you calm down.” It is quite another matter to say: “Because you are creating a fuss ... I will punish you by keeping you in your cell for 20 minutes.” It seems to me that the Prison Officer does not have the power to behave as in the second example. ...

... Some time was spent on considering the consequences of missing her medication in the morning. The weight of the evidence was that it would have made little or no difference to her physical condition or her state of mind. ...

I cannot set out any reasonable precautions which might have prevented the death of ... I cannot set out any defects in the system which contributed to her death. I do not know why killed herself. ...

I make a composite determination in terms of Section 6 (1)(e) of the

3. In relation to Bollan >, had no power to inflict punishment upon her; therefore insofar as he imposed a further period behind the door as a punishment he was acting incorrectly.”

On 29 April 1999, the applicants commenced an action in the Stirling Sheriff Court, claiming on behalf of the third applicant damages for loss of society of her mother and loss of support due to the negligence and breach of statutory duties by Scottish Prison Service employees. It is claimed, inter alia , that the officers had no right to keep Angela Bollan locked in as a punishment and that if she had been reported to the Governor under rule 95, instead of being left in her cell until lunchtime, she would not have taken her own life.

The applicants requested an adjournment, agreed by the court, in order to apply for legal aid. An opinion as to causation was obtained from Queen’s Counsel. Legal aid was refused. An application for review of that refusal was rejected. The applicants state that without funding the action will proceed no further.

B. Relevant domestic law and practice

Prison disciplinary provisions

The principal statute regulating the management of prisons is the Prisons (Scotland) Act 1989. This provides that the Secretary of State is responsible for prisons and is empowered to appoint governors and officers to run them. He is empowered to make rules for the regulation of prisons and the control of persons detained in them.

The relevant rules in this case are The Prisons and Young Offenders Institutions (Scotland) Rules 1994 (“the Rules”).

The management of a prison and supervision of prisoners is vested in the Governor (Rule 78(1)). Officers act under the authority of the governor in carrying out the daily tasks of running the prison (Rule 3).

Part 9 of the Rules deals with security and control. In particular, by Rule 80, the Governor may order in writing that a prisoner be removed from association with other prisoners where it seems desirable for the purpose of maintaining good order and discipline, protecting the interests of any prisoner or ensuring the safety of other persons. An order may be general or related to a specific activity. If general, it shall not be effective for more than 72 hours without the written authority of the Secretary of State. An authority granted by the Secretary of State may not exceed one month but may be renewed. Where the order relates to a specific activity, it may not exceed 72 hours but the Governor may make a further order, subject to weekly review.

By Rule 83, the Governor may order that a prisoner be restrained by means of a body belt if it seems necessary to restrain a prisoner who threatens to injure, or is injuring himself or others; who threatens to damage, or is damaging property or who threatens to create or is creating a disturbance. The medical officer must be advised of the use of a body belt. If he does not concur, the belt must be removed.

By Rule 85, the Governor may order the temporary confinement in a special cell of any prisoner who is refractory or acting in a violent manner. Such confinement must last no longer than necessary and in any event not more than 24 hours. Notice of it must be given to a medical officer and the prisoner must be visited once every fifteen minutes. A special cell is other than one normally occupied by the prisoner, and having special facilities for observation.

Part 10 of the Rules deals with breaches of discipline. Rule 94, interpreted in accordance with Schedule 3, indicates a range of behaviours, including conduct disrespectful to an officer, use of threatening, abusive or insulting words or behaviour, refusal to obey a lawful order or failure to comply with any rule or regulation. Rule 95 provides that the officer to whose notice it has come shall report every suspected breach of discipline to the Governor, who may then order that the prisoner be removed from association, such removal save in exceptional circumstances, to last no longer than 72 hours. Rule 96 provides that a charge of breach of discipline shall be brought as soon as possible and in any event within 48 hours. The prisoner must have written notice of the charge at least two hours prior to the inquiry. Rule 96 further provides for the Governor to hear an inquiry into a charge. The prisoner must have full details of the charge, receive a full opportunity to present his own case, call witnesses on his own behalf and cross-examine witnesses. In exceptional cases the Governor may allow the prisoner legal representation. Rule 100 provides for punishment, including a caution, a forfeiture of privileges and postponement of the release date. Rule 111, in Part 11, provides for appeals to the Secretary of State, on findings of guilt and sentence.

Complaint procedures available to prisoners

Part 11 of the Rules deals with requests and complaints.

By Rule 102, a prisoner may ask to speak to an officer of the Secretary of State, a member of the Visiting Committee or a sheriff or justice of the peace who is visiting the prison. Rule 103 provides that a prisoner wishing to complain to the Visiting Committee shall be given paper and his letter posted without delay.

Rules 104 to 109 provide a system whereby a prisoner may complain firstly to a residential officer, then to the residential unit manager and then to an internal complaints committee, from there to the Governor and finally to the Secretary of State.

A Scottish Prison Complaints Commissioner operates outside the statutory framework to hear complaints by prisoners.

Prisoners alleging a breach of the rules may challenge decisions of the Governor or officers acting on his behalf by way of judicial review proceedings in the Court of Session.

Domestic case-law on confinement within prison

In the case of Hague v. Deputy Governor of Parkhurst Prison and others, and Weldon v. the Home Office (1991 3 AER 734) the House of Lords held concerning the complaints of prisoners that their liberty had been unlawfully restricted by measures taken within the prison:

“He is lawfully committed to prison and while there is subject to the Prison Act 1952 and the Prison Rules 1964. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined.”

COMPLAINTS

2. The applicants allege that the detention of the deceased in the circumstances set out ceased to be lawful and amounted to a breach of Article 5 of the Convention. There was no basis in the Prison Rules for the existence of any power or practice to detain Angela Bollan in her cell, and by the recognition and encouragement of that illegal punishment and detention of the deceased, the authorities caused or contributed to her death.

3. The applicants allege that restrictions were illegally placed on the right of the deceased to peaceful assembly and freedom of association which amounted to a breach of Article 11 of the Convention.

THE LAW

1. The applicants complain that the confinement of Angela Bollan in her cell disclosed degrading punishment or treatment contrary to Article 3 which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submit that the general prison conditions at Cornton Vale were not severe and could not be regarded as reaching the level of inhuman or degrading. She was only kept in her cell for about one hour and fifty minutes and there was no evidence that she was a suicide risk or that such confinement would create any such risk.

The applicants submit that it was degrading for Angela Bollan , a 19 year old with a history of heroin abuse and no previous history of prison rule infringements, to be treated in the way she was. She was unnecessarily and unjustifiably punished outside the rules and this must be regarded as degrading to the individual involved.

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of its treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, amongst other authorities, the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, § 52). Furthermore, in considering whether a punishment or treatment is degrading, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, § 55).

In the present case, Angela Bollan was informed by prison officers that she would remain in her cell, instead of joining others in association before lunch. This was in response to her actions in kicking the cell-door. It involved continued confinement in her cell for a period from 11.10 a.m. to 12.50 p.m., when she was discovered to have committed suicide. The evidence at the enquiry however confirmed that there was no reason to suspect that she was at suicide risk. The weight of the evidence also indicated that the fact she had not taken her medication that morning would have had no effect on her state of mind. There was some discussion and uncertainty at the enquiry as to whether the prison officers intended to punish Angela Bollan by keeping her in her cell longer than usual, which was outside their powers, or whether this was an acceptable cooling-off measure within their powers.

Whether or not the confinement was intended as a punishment however, the Court finds that it did not reach the minimum level of severity required by Article 3 of the Convention to disclose either inhuman or degrading treatment or punishment. It has taken into account in that regard the short duration of the confinement, the fact that the confinement was in her own cell, and that there were no indications, physical or mental, which rendered, or should have rendered, the prison authorities aware that Angela Bollan was at risk of any acute or severe suffering as a result of the measure.

The Court finds therefore that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicants complain that the confinement of Angela Bollan in her cell discloses a violation of Article 5 § 1 of the Convention, which provides as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; …”

The Government submit that Angela Bollan was lawfully committed to prison in terms of the warrant of the court. Nothing done by the prison officers changed the basis under which she was deprived of her liberty. The decision by the officers not to allow her out of her cell until lunchtime was part of the normal operation of the prison. They did not act unlawfully but under their authority, acting on behalf of the Governor, to supervise and control the daily life of prisoners and to manage occurrences of a transitory nature, not necessitating formal disciplinary measures. The actions of the prison officers were concerned rather with restriction of movement not with liberty. In any event, to the extent that the applicants argue that the confinement was unlawful, they have not exhausted domestic remedies as required by Article 35 § 1 of the Convention by pursuing an action for damages against the prison authorities.

The applicants submit that they have exhausted domestic remedies. An action was lodged in court to protect any potential claim from the time-limit. However legal aid has been refused and the action can proceed no further. As regards the substance of their complaints, they dispute that the prison officers were taking merely “cooling off” measures. Their action in denying her association was intended as, and was of the nature of, a punishment. This punishment was not covered by the Prison Rules, which provided for formal steps to be taken, attended by procedural safeguards. It was also unnecessary and unjustified, given Angela Bollan’s history of good conduct and the lack of threat to order which her banging on the door disclosed. While the initial detention might have been initially justified under Article 5 § 1 (a), the further deprivation of liberty by illegally locking her in her cell without just cause, without any form of safeguard and in a totally arbitrary fashion, falls outside any justifying ground under Article 5 § 1(a) or (b).

The Court finds it unnecessary to decide whether the applicants have exhausted domestic remedies as required by Article 35 § 1 of the Convention for the reasons set out below.

The Court reiterates that in order to comply with Article 5 § 1 the detention in issue must take place “in accordance with a procedure prescribed by law” and be “lawful”. The Convention here refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the aim of Article 5, namely to protect the individual from arbitrariness (see, amongst other authorities, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, §§ 39 and 45, and Aerts v. Belgium judgment of 30 July 1998, Reports 1998-V, § 46). Furthermore there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, § 44).

It is undisputed in the present case that Angela Bollan was lawfully detained in Cornton Vale prison pursuant to a court order remanding her in custody pending sentence for a criminal offence. Nor is it disputed that the prison was an appropriate establishment for that type of detention or that there was anything inappropriate concerning her place of detention within the prison. The principal issue is whether the decision of the prison officers to leave Angela Bollan in her cell until lunchtime - a period of less than two hours - in itself disclosed an unjustified and unlawful deprivation of her liberty within that prison.

The Court does not exclude that measures adopted within a prison may disclose interferences with the right to liberty in exceptional circumstances. Generally however, disciplinary steps, imposed formally or informally, which have effects on conditions of detention within a prison, cannot be considered as constituting deprivation of liberty. Such measures must be regarded in normal circumstances as modifications of the conditions of lawful detention and therefore fall outside the scope of Article 5 § 1 of the Convention (see Application no. 7754/77, dec. 9.5.77, D.R. 11, p. 216). In appropriate cases, issues may arise however under Articles 3 and 8 of the Convention.

On the facts of the present case, taking into account the type, duration and manner of implementation of the measure, the Court finds that the confinement of Angela Bollan in her cell from 11.10 a.m. to 12.50 p.m. disclosed a variation in the routine conditions of her detention, the nature and degree of which did not in the circumstances involve a deprivation of liberty.

It follows that this part of the application must be dismissed as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicants complain that Angela Bollan was deprived of association contrary to Article 11 of the Convention which provides:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The Court considers that Article 11 does not apply, within the context of prisons, to confer a right to mix socially with other prisoners at any particular time or place (see McFeeley v. the United Kingdom, no. 8317/78, dec. 15.5.1980, D.R. 20, p. 44 at p. 98). It accordingly rejects this complaint as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President