AS TO THE ADMISSIBILITY OF

                      Application No. 28555/95

                      by Madeline TOGHER

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 6 February 1995

by Madeline TOGHER against the United Kingdom and registered on

18 September 1995 under file No. 28555/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations of the Government dated 2 July 1997, the records

     concerning the applicant's detention received from the Government

     on 5 December 1997 and the observations of the applicant in reply

     received on 8 January 1998;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant was born in 1972 and is a British citizen residing

in the United Kingdom. She is represented before the Commission by

Camilla Loewe, a solicitor practising in London. The facts as submitted

by the parties may be summarised as follows.

A.   Particular circumstances of the case

     On 1 January 1995 the applicant gave birth to a daughter and

commenced breast-feeding. On 11 January 1995 she was arrested on

suspicion of knowingly being concerned in the fraudulent evasion of the

prohibition on the importation of cocaine contrary to section 170(2)

of the Customs and Excise Management Act 1979. Customs and Excise had

seised 370 kilogrammes of cocaine which had an estimated street value

of £37 million and the applicant was suspected as having played a role

in its importation. Others (including her husband who was suspected as

being the central figure in the importation) were also arrested.

     The applicant arrived at Battersea police station at 18.05 on

11 January 1995 and her parents (who took charge of the applicant's

child) accompanied her. She was examined by the police duty medical

examiner who concluded that, although the applicant was 22 years old,

her immature and fragile condition made it necessary for her to be

interviewed in the presence of an appropriate adult. He also advised

against the applicant being separated from her child whom she was

breast-feeding and advised that, if the applicant was charged and

remanded in custody, she should be placed in the Mother and Baby unit

at Holloway prison. The records of her detention in that station

indicate that the applicant had contact with a solicitor approximately

50 minutes after her arrival and subsequently at least four times by

telephone and five times in consultation. Her parents visited her twice

at the station and her father attended interviews with the applicant

on 12 January 1995. "Prisoner's and Child's welfare needs being dealt

with" is noted in the records at 18.15 on 12 January 1995. It is also

recorded that in the morning of 12 and 13 January 1995 the applicant

was allowed out of her cell to wash. In the evening of 12 January 1995

the applicant was charged with conspiracy to import cocaine contrary

to section 170(2) Customs and Excise Management Act 1979. Police bail

was refused.

     On 13 January 1995 the applicant was brought before the

Magistrates' Court together with her husband and the other co-accused

and all accused were remanded in custody, bail having been refused. The

police completed a transfer of custody form on the same day noting that

due to the large amount of cocaine that had been seised and therefore

the serious nature of the charge, it was anticipated that an escape

attempt could be made. On reception at Holloway prison, and in

accordance with the section 36 of the Prison Service Security Manual,

the applicant was given provisional Category A security status. The

applicant's parents brought her child to her on 14 and 15 January 1995

and on each occasion the visit with the applicant lasted approximately

fifteen minutes. Social services then placed the child with foster

parents (the baby could still be brought by social services for visits

to the prison) and the applicant's parents returned to Scotland.

     On 16 January 1995 the applicant's solicitor was informed that

a decision on the applicant's status would be taken by a committee of

the Custody Group of the Home Office Prison Department later that

afternoon and that representations on the applicant's behalf could be

made. The representations submitted challenged the appropriateness of

the Category A status and referred, inter alia, to the likely harm to

the applicant and the baby by the consequent separation.

     On 18 January 1995 the Custody Group confirmed the applicant's

Category A status pursuant to the Prison Rules 1964 and the Prison

Service Security Manual. By letter dated 18 January 1995 that Group

notified the applicant's solicitor of that confirmation and pointed

out, in reaching its decision, that the points raised by the

applicant's solicitor had been considered but, given the serious nature

of the charges against the applicant, Category A status was considered

appropriate. In response to a question of the applicant's solicitors,

the latter were informed by "the prison" by telephone later that day

that there are only two categories of woman prisoner - female prisoners

and Category A prisoners - and that the applicant would have access to

the Mother and Baby unit only if the Home Office decided to de-

categorise the applicant.

     On 19 January 1995 the applicant applied to the High Court for

leave to apply for judicial review of the decision of the Custody Group

on the express basis that her categorisation meant that she had no

access to the Mother and Baby unit and entailed her separation from her

baby. The applicant cited, inter alia, the power of the Secretary of

State under rule 9(3) Prison Rules 1964 and Articles 3 and 8 of the

European Convention for the Protection of Human Rights and Fundamental

Freedoms ("the Convention"). When counsel for the Secretary of State

stated that the letter of 18 January 1995 did not represent the reasons

for the decision on the applicant's categorisation, the court adjourned

the matter pending receipt in writing of the full reasons for that

decision from the Secretary of State.

     In a letter dated 20 January 1995 the Secretary of State set out

those reasons. He noted that account had been taken of the seriousness

of the charge, the existence of evidence which implicated the applicant

with the offence charged, the risk of escape, the alleged prominent

role of the applicant's husband in the alleged crime and of certain

information which led the Secretary of State to believe that the

applicant's husband had past dealings in the supply of cocaine and had

numerous criminal associates. The letter continued as follows:

     "On the information available, it was concluded that

     applicant> ... has played a prominent operational and

     organisational role in the activities of a well resourced

     criminal organisation, held a position of trust in that

     organisation, has access to considerable resources and associates

     capable of both mounting an armed escape attempt and violently

     resisting any attempt at re-arrest. In reaching this conclusion,

     account was also taken of the fact that could,

     on conviction, face a lengthy prison sentence, possibly one of

     life imprisonment. ... In addition, account was taken of the fact

     that gave birth to a baby on 1 January. However

     this had to be balanced against all the other factors in her

     case, as stated above, which outweighed that consideration. On

     the totality of information available, it was decided that

     applicant> should be provisionally Category A."    On 23 January

     1995 the High Court refused the judicial review application. A

     renewed application to the Court of Appeal for leave to apply for

     judicial review was made on 25 January 1995 and this was refused

     on 1 February 1995. The Court of Appeal found, inter alia, that

     the categorisation procedure had been complied with and that it

     was sufficient for the Secretary of State to rely on the risk

     inherent in the surrounding circumstances, that the separation

     did not amount to treatment of a sufficiently severe level to

     constitute treatment contrary to Article 3 of the Convention and

     that the Secretary of State had correctly balanced the public

     interest against the right to respect for family life as required

     by Article 8 of the Convention.

     On, inter alia, 20 and 27 January, 10 February, 10 March and

7 April 1995 the applicant's continued detention was considered and

bail was refused by the Magistrates' Court. In a letter dated

24 February 1995 the Head of Custody in Holloway outlined the reasons

why a Category A prisoner was unsuitable for the Mother and Baby unit

and confirmed that the applicant had not made an application for Sunday

visits (all day) although it was open to her to do so - such an

application would be considered on its merits but security

considerations would remain paramount. Three letters dated 9 and

14 March 1995 from the Director General's Office of the Prison Service,

in reply to letters from members of parliament in relation to the

applicant, repeated the contents of the Head of Custody's letter. A

handwritten note of Governor 5 in Holloway prison dated 12 April 1995

(recording a telephone call to the prison service) noted that there was

no trace of an application from the applicant for Sunday family visits.

     On 12 April 1995 the applicant was granted bail by Brighton

Magistrates' Court and the Crown Court rejected an appeal that same

day. The applicant, who was on the way back to Holloway prison when

bail was granted, was retained in a cell in the prison for three and

half hours after which she was released and re-arrested on a second

charge (knowingly being concerned in the fraudulent evasion of a

prohibition on the importation of cocaine contrary to section 170(2)

of the Customs and Excise Management Act 1979) outside the prison gates

by customs officers. She was driven to Portsmouth police station. She

arrived at 23.40 and remained there until 10.10 hours on 16 April 1995.

The records submitted indicate that, apart from the regular

surveillance of the police officers and other contact outside of her

cell, the applicant was visited in her cell by her solicitor (6 times),

a police doctor, her mother, her father, a psychiatrist and by a police

inspector (4 times). At 11.15 on 14 April 1995 the applicant was

formally charged with this second offence and police bail was refused.

On 15 April the applicant was refused bail and was remanded in custody

by a specially convened Magistrates' Court (it being the Easter Bank

Holiday Weekend). She was returned to Holloway prison. On 20 April 1995

the applicant was again granted bail and released.

     Subsequently, a third charge was added and the second charge was

withdrawn. The applicant was acquitted of the first charge on

19 March 1997 and the third charge is not being pursued. The applicant

was re-united with her daughter on her release in April 1995 and has

not been detained since then. On 14 August 1995 the Prison Ombudsman

rejected the applicant's complaint about the necessity of her

categorisation in Holloway prison. B.  Relevant domestic law and

practice

     Categorisation of prisoners

     Section 47 of the Prison Act 1952 allows the Secretary of State

to make rules for the management of prisons and other penal

institutions and the Prison Rules 1964 were made pursuant to those

powers. Rule 3(1) provides:

     "Prisoners shall be classified in accordance with any directions

     of the Secretary of State, having regard to their age,

     temperament and record and with a view to maintaining good order

     and facilitating training and, in the case of convicted

     prisoners, of furthering the purpose of their training and

     treatment as provided by Rule 1 of these Rules."

     Category A prisoners are defined as those whose escape would be

highly dangerous to the public, or to the police, or to the security

of the state, no matter how unlikely that escape might be and for whom

the aim must be to make escape impossible.

     Guidance for prison staff as to the categorisation procedure is

set out in section 36 of the Prison Service Security Manual. On

reception of a prisoner prison staff are required to identify those

prisoners charged with listed serious offences. They must then contact

the police officer in charge of the case to obtain information about

the offence with which the prisoner is charged together with the

prisoner's dangerousness and escape potential. Having obtained this

information, the staff are required to report to Prison Service

Headquarters those prisoners charged with the aforesaid offences which

meet any one or more of a list of specified criteria set out section

36.5 which criteria include an indication by the arresting authorities

that an offender charged with serious drug importation or production

offences may be a senior member of a well resourced criminal gang

prepared to use firearms in an escape attempt. A decision is then taken

on whether the prisoner will be provisionally categorised as category

A which categorisation is then subject to confirmation by the Custody

Group of the Home Office Prison Department.

     Remedies as regards treatment and conditions of detention

     Both the police and prison service owe a common law duty of care

to those in their custody to take reasonable care to protect them from

foreseeable risks to their health and safety. Intolerable conditions

of detention were recognised as being a proper basis for judicial

review by the House of Lords in R v. Deputy Governor of Parkhurst Ex

Parte Hague [1992] 1 A.C. 58. The House of Lords also recognised that

prisoners had available an action in tort for damages against the

authorities for damages for negligence where the intolerable conditions

cause him to suffer injury (psychiatric or physical), for assault and

for misfeasance in the exercise of a public office.

     Moreover, any prisoner dissatisfied with a decision taken in

connection with the conditions of his imprisonment may use the "Request

and Complaints" system which was introduced in 1990 and through which

prisoners are encouraged to attempt to resolve complaints informally.

However, if the complaint cannot be so dealt with the prisoner may make

a formal application which application will be recorded and a senior

member of staff will discuss the matter with the prisoner usually

within 2 days. In the event that the prisoner remains dissatisfied, he

then completes a request/complaint which is considered by the Governor

and replied to usually within 7 days. A right of appeal lies to the

Area Manager of the Prison Service, from which an application for

judicial review can be made.

     Since October 1994, prisoners can also complain to the Prisons

Ombudsman.

     Female prisoners and Mother and Baby units

     Rule 9(3) of the Prison Rules 1964 provides:

     "The Secretary of State may, subject to any conditions he thinks

     fit, permit a woman prisoner to have her baby with her in prison,

     and everything necessary for the baby's maintenance and care may

     be provided there."

     Generally speaking, from an average female prison population of

2000 prisoners, 4-5 of such prisoners are Category A prisoners.

     The prison service maintains Mother and Baby units in 4 prisons.

At the material time, the Holloway Mother and Baby unit had space for

13 mothers and babies. The booklet published by the prison service

describing the Mother and Baby units points out that one of the aims

of the units is to provide an environment with facilities conducive to

proper child care in which the development of babies is actively

fostered (in terms of, inter alia, locomotive, social, emotional,

speech and language and cognitive skills). In the context of the aims

and objectives of the units, it is also noted that the needs of the

babies within the units must, unless there are very strong reasons of

security or control, be put first. The other aim is described in the

booklet as the exercise and development of the parenting skills of the

female prisoner, many of which mothers are young and have been the

subjects of abuse. The criteria for admission to the unit include the

age of the baby and whether there is an expectation that the mother

will look after the baby after release.

     Accordingly, the units are open and subject to a minimum of

security and supervision (therefore limited prison staff). Each mother

has a single cell which is never locked, all mothers share communal

facilities and all mothers move around freely in the unit. There is

unsupervised access to the grounds of the prison during the day and to

a roof garden at all times.

     The Multi-Disciplinary Team of the unit advises the Governor on

admission applications and among the criteria to be considered is the

increasing unsuitability of the unit as a child grows older, the

availability and suitability of alternative care for the child and

whether the mother is breast-feeding.

COMPLAINTS

1.   The applicant complains under Article 3 of the Convention in

relation to her treatment in detention in Battersea and Portsmouth

police stations and about the conditions in those stations.

2.   The applicant complains about the enforced separation from her

child which was consequent on her categorisation as a Category A

security prisoner. She complains that in the circumstances of her

detention it constituted an unjustifiable interference with her family

life and treatment contrary to Article 3 of the Convention.

2.   The applicant further complains under Article 5 para. 4 that she

was denied an opportunity to take proceedings by which the lawfulness

of her detention could be decided speedily by a court. She also invokes

Article 5 para. 5 of the Convention in this respect.

4.   The applicant also complains under Article 6 para. 2 of the

Convention submitting that the decision as to her Category A status

violated her right to be presumed innocent until proven guilty of the

charges against her.

5.   Finally, the applicant invokes, in her observations, Article 13

of the Convention submitting that she had no effective remedy in

relation to her separation from her baby.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 6 February 1995 and was

registered on 18 September 1995.

     On 26 February 1997 the Commission decided to communicate the

application and request the parties' observations on the admissibility

and merits of the applicant's complaints under Articles 8 and 3 of the

Convention in relation to the applicant's separation from her baby.

     The observations of the Government were received on 9 July 1997,

the records concerning the applicant's detention were received from the

Government on 5 December 1997 and the observations of the applicant in

reply were received on 8 January 1998. On 9 July 1997 the Commission

decided to grant the applicant legal aid.

THE LAW

1.   The applicant complains that the conditions of, and her treatment

in, Battersea and Portsmouth police stations amounted to treatment

contrary to Article 3 (Art. 3) of the Convention. She refers to bad

conditions, ill-treatment and a lack of washing facilities leading to

an infection in Battersea police station and to bad conditions in

Portsmouth police station. Article 3 (Art. 3) of the Convention reads

as follows:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     The Government submit that the applicant has not exhausted

domestic remedies since she did not take actions in tort against the

police for damages in negligence, for damages for assault or for

misfeasance in the exercise of a public office. In any event, the

Government argue that these allegations are unsubstantiated - the

Government submit a copy of the police records covering her detention

in both police stations and contest, with reference to those records,

the applicant's allegations.

     The Commission notes that the applicant has not repeated her

allegations in her observations. Although a small number of entries in

the copy records submitted are not legible, the applicant has not

commented in any way on those records or on the Government's

observations in those respects. The records indicate that in Battersea

police station, and apart from the regular surveillance of the police

officers, the applicant had regular contact by telephone and in person

with a solicitor and with her parents. She was also seen at least twice

by the police medical officer. It is further noted that she left her

cell to wash on both mornings she was detained there. In Portsmouth

Station it is recorded that, apart from the regular surveillance of the

police officers and other contact outside of her cell, the applicant

was visited in her cell on numerous occasions by her solicitor and by

a police inspector and also by a police doctor, her mother, her father

and a psychiatrist. Despite such contact, there is no evidence of any

contemporaneous complaint made by the applicant as regards her

detention in either of those police stations or of any subsequent

complaints made by her to the police authorities.

     In such circumstances, the Commission considers, whether or not

the applicant had an effective domestic remedy to exhaust in these

respects, that her allegations as regards her treatment during and the

conditions of her detention in the relevant police stations are

unsubstantiated and, as such, manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

2.   The applicant also complains about the physical and psychological

effects on her of her separation from her baby which was consequent on

her being accorded Category A security status in Holloway prison.

     She considers that separation, in the circumstances of her pre-

trial detention, constituted an unjustifiable interference with her

family life and amounted to treatment contrary to Article 3 (Art. 3)

of the Convention. The circumstances to which she refers are reduced

association with other prisoners (she alleges that, at one stage, she

had no such contact for eight days) and confinement to her cell for

most of the day. Article 3 (Art. 3) is cited above and the Commission

has also considered this complaint under Article 8 (Art. 8) which

latter Article, insofar as relevant, reads as follows:

     "1. Everyone has the right to respect for his ... family life,

     ...

     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, ... for the prevention of

     disorder or crime, ... or for the protection of the rights and

     freedoms of others."

(a)  Article 26 (Art. 26) of the Convention

     The Government argue that the applicant's allegations, as regards

lack of association with other prisoners (including the eight day

period to which she refers) and the amount of time spent in her cell,

are inadmissible on grounds of non-exhaustion. They point out that the

applicant failed, inter alia, to make any contemporary complaint about

the conditions of detention in Holloway Prison, to utilise the "Request

and Complaints" procedure which could have rectified any well-founded

complaint within a matter of days and to complain to the Prison

Ombudsman in those respects.

     In any event, the Government contest those allegations of the

applicant. The Government have provided a copy of the applicant's

prison records and submit that the applicant was for most days out of

her cell for almost five hours each day and she ate her meals outside

of her cell. She was never locked in her cell for 24 hours although it

is accepted that on some days she was allowed out of her cell for only

one hour as a result of the temporary unavailability of prison officers

who, in accordance with Category A requirements, had to "shadow" the

applicant when she left her cell. As well as contact with other

prisoners, she had frequent contact with prison officers and with the

Governor grades whom she saw every day. Members of the Board of

Visitors were in prison every day and would have seen regularly the

applicant as would the prison medical officers and the Chaplain's

staff. The applicant had access to the telephone of which she made

frequent use.

     The Commission, in the first place, notes that the applicant's

complaints under Articles 3 and 8 (Art. 3, 8) relate to her separation

from her baby consequent on her Category A status and her allegations

as regards the conditions of detention form part of her submissions in

that respect. Secondly, and in any event, the Commission considers that

the applicant's submissions as regards those conditions of detention

do not demonstrate treatment outside of the prescribed Category A

security conditions and procedures - the Commission notes that the

allegations made in her initial application were vague; she does not

dispute the Government's detailed responses which responses are not

inconsistent with the records submitted.

     Accordingly, the Commission considers that the applicant's

challenge to the Category A security status itself by way of an

application for leave to apply for judicial review was sufficient to

comply with the requirements as to exhaustion of domestic remedies

contained in Article 26 (Art. 26) of the Convention as regards the

within complaints of the applicant.

(b)  Merits of the complaints relating to the applicant's separation

     from her baby under Articles 3 and 8 (Art. 3, 8) of the

Convention

     The Government make a number of preliminary factual observations.

The Government submit that the applicant accepted that her

categorisation solely determined whether her baby remained with her

because the only action taken by her was the judicial review

proceedings and because she did not request special arrangements to

accommodate her and her baby.

     Secondly, the Government point out that on 13 January 1995 the

prison service was faced for the first time ever with a Category A

female prisoner who already had a baby. They argue that the nature of

the Mother and Baby units is completely incompatible with the security

requirements of Category A status because those units are designed to

be open and have a relaxed security regime which is for the benefit

both of the baby (by providing as normal an environment as possible in

accordance with child care expertise) and of the mother (by encouraging

parenting skills). The view was rightly taken, according to the

Government, that it would be inappropriate for the baby to locate the

baby in an ordinary cell in Category A circumstances with its mother.

Therefore there was nothing, according to the Government, which could

have been done immediately to accommodate the baby in a suitable

environment given the applicant's Category A status. On one occasion

in the past, a Category A female prisoner was pregnant when first

detained and there was sufficient time before the birth to make special

arrangements (including structural changes and special procedural

arrangements) to allow that mother to stay "within" the Mother and Baby

unit.

     Thirdly, and insofar as part of her complaint about separation

is based on the loss of the advantages of breast-feeding, that loss had

crystallised on 13 January 1995 and it cannot be said that the prison

authorities were obliged to have had immediately in place a dedicated

regime for a Category A mother with a baby. In any event, the

advantages of breast-feeding accrue during the first days of life and

the baby had already been breast-fed for 12 days.

     Fourthly, the Government submit that the applicant did not take

advantage of the possibility of full contact visits which take place

2-3 times per week and last 45 minutes and that there is no record that

she applied for all-day family visits which take place every second

Sunday. It is also noted that the applicant did not request special

arrangements in the first days of her detention to express milk so that

the baby could have been fed remotely (such facilities having been

provided in other cases).

     In such circumstances, the Government submit that the applicant's

complaints do not disclose circumstances reaching the level of severity

which would fall within the scope of Article 3 (Art. 3) (Eur. Court HR,

Ireland v. the United Kingdom judgment of 18 January 1978, Series A no.

25, p. 65, para. 162). They also specify that the segregation of

persons in detention for reasons of security does not, of itself,

breach Article 3 (Art. 3) (see, inter alia, Nos. 7572/76, 7586/76 and

7587/76, Dec. 8.7.78, D.R. 14, p. 64 and No. 8158/78, Dec. 10.7.80,

D.R. 21, p. 95).

     As regards Article 8 (Art. 8) of the Convention, the Government

submit that even if there was a positive obligation to protect the

applicant's right to respect for family life (No. 9054/80, Dec.

8.10.82, D.R. 30, p. 113), it would only be in exceptional

circumstances that the balance of competing interests would weigh in

favour of a prisoner (No. 18632/91, Dec. 12.9.92, unpublished). In

order for the circumstances to be exceptional, the applicant must have

demonstrated that there was an obvious alternative practicable course

available to the prison authorities to avoid the applicant's separation

from her baby. Since at no time the applicant made any such suggestion;

in light of the careful consideration of the applicant's Category A

status; since the prison service was unable to provide facilities to

enable the applicant to have her baby with her while maintaining

security; and in view of the visiting options available to the

applicant, the prison service complied with any positive obligation

under Article 8 para. 1 (Art. 8-1) of the Convention. There was,

therefore, no interference for the purpose of Article 8 para. 1

(Art. 8-1) of the Convention

     Alternatively, if there was such an interference, the Government

submit that it was justified. The applicant's remand in custody and

detention was lawful. The objectives sought to be protected by the

applicant's Category A status which necessitated her separation from

her baby were the protection of public safety and the prevention of

disorder and crime (the perceived risk of escape with consequent

violence and interruption of the prosecution of the case) together with

the protection of the rights and freedoms of others, particularly the

baby. Moreover, the circumstances of the applicant's detention were

"necessary" namely, a proportionate response to a pressing social need.

The prison authorities were bound to form a view about the risks

involved in detention and determine the appropriate regime of detention

in the light of those risks. Accordingly, and bearing in mind the

State's margin of appreciation, the attribution of Category A status

with the consequent separation of the applicant from her baby was a

proportionate response to the circumstances presented on her arrest and

during her subsequent detention.

     In such circumstances, the Government argue that the applicant's

complaints under Articles 3 and 8 (Art. 3, 8) as regards her separation

from her baby are inadmissible as manifestly ill-founded or, in the

alternative, do not disclose a violation of the Convention.

     The applicant, in the first place, refers to the crucial

importance of the bond between a mother and a new born baby for both

the mother and the baby; to the necessity for constant residential

contact to preserve this; to her particularly vulnerable and emotional

state when separated (she had recently given birth to her first child,

she was physically frail and she had a history of depression); her

separation provoked a deep sense of loss; the obligatory cessation of

breast-feeding led to the applicant's physical discomfort, her mental

distress and to the loss of the physical benefits of breast-feeding

which accrue to a nursing mother; the cessation of breast-feeding also

impacted negatively on the mother and child bonding process; and the

physical effects on the child of the separation (the loss of the

benefits of breast-feeding including reduced risk of mortality, reduced

chance of infection, enhanced immunity, increased intelligence and

reduced risk of auto-immune disease such as diabetes) together with the

emotional effects on the child were a source of distress to the

applicant.

     The applicant responds to certain of the Government's preliminary

remarks as follows. As regards the possibilities for contact with her

child, the applicant points out that at the beginning "she was

informed" that no real access or contact could be established as long

as she remained Category A - the obvious route therefore was to

challenge her Category A status. Bearing in mind her inexperience of

the prison system, the rejection of her judicial review application,

her weak physical and psychological condition following a difficult

birth and following her separation from her child at an early stage,

the applicant had "no reason to doubt" the advice she had been given.

When judicial review was unsuccessful, she applied for Sunday family

visits and this was refused on security grounds. In any event, the

possibility of sporadic contact has no bearing on a complaint relating

to the need for full access to preserve a mother-child bond.

     It is true that the applicant did not request special facilities

but she understood that the position was simply that as long as she

remained Category A she would not have her child with her - she was not

aware of the possibility to "request special facilities" (either to

remain with her child or to express milk). She points out that no

attempt was made to inform her of these options despite her obvious

concern highlighted by her challenges to her categorisation made on the

express basis that she saw her Category A status as a bar to her being

with her child and despite her recognised vulnerable state. She adds

that it would have been wholly unfeasible to express milk for an absent

baby for the period of detention at issue.

     The applicant considers that she has exhausted domestic remedies

as regards her separation from her baby by way of the judicial review

proceedings. Her Category A status was the obstacle to access to her

baby - this was the position expressed by the prison authorities and

was inherent in the Government's defence to the judicial review

proceedings.

     As regards Article 8 (Art. 8) of the Convention, the applicant

relies on the following matters to establish either a failure to fulfil

the positive obligation on the United Kingdom Government to ensure

effective respect for her family life or, in the alternative, a

disproportionate interference with her family life.

     In the first place, the applicant disputes the necessity of her

security classification given the absence of any evidence of a risk of

any escape attempt and her particular personal circumstances which

militated against any such conclusion - she was weak emotionally and

physically after the recent birth of and separation from her child and

her overriding concern was for her child. Secondly, the cases upon

which the Government rely can be distinguished on their facts - the

McCotter case (No. 18632/91, loc. cit.) related to a transfer of a

convicted terrorist to another prison in Northern Ireland to facilitate

visits with two brothers who were also convicted terrorists. The X v.

the United Kingdom case (No. 9054/80, loc. cit.) related to an

applicant who sought visits with a man with whom she had recently

become acquainted through correspondence. Her case, in contrast,

relates to the crucial full access necessary to maintain the bond

between a newborn baby and its mother.

     Thirdly, and even if "exceptional circumstances" must be shown

in accordance with the McCotter case, these exist in the present case -

the number of female prisoners is low and the number of female

prisoners with babies is even lower; the applicant's child was just

less than two weeks old when she was transferred to Holloway; the child

was being breast-fed; the child was dependent on her mother and was an

innocent party in the debate surrounding contact with her mother. The

Government itself has acknowledged the importance of the mother-child

bond by the creation of the Mother and Baby units.

     The applicant does not accept that it was or is up to her to

demonstrate that a practical alternative course was open to the prison

authorities. However, even if this is the case, she refers to the

Government's own observations where they outline the accommodation made

for another female prisoner who was Category A and for whom special

arrangements were made to allow her to keep her baby with her. The fact

that the applicant did not specifically request such special

arrangements is not a valid defence in view of the positive obligation

on the detaining authorities and because, in any event, she had been

repeatedly told that her Category A status was a complete bar to her

having her child with her. Had she been informed that residential

access could have been provided for her and the baby in the near

future, there is no reason to suppose that she would not have

maintained her ability to lactate by expression of milk during the

intervening period.

     Accordingly, the applicant maintains that the separation from her

baby, because of and in the circumstances of her Category A detention,

amounted to either a failure on the part of the Government to fulfil

its positive obligation to ensure effective respect for her family life

or to an unjustifiable interference with her family life in violation

of Article 8 (Art. 8) and also amounted to treatment contrary to

Article 3 (Art. 3) of the Convention.

     The Commission considers that the complaints as regards the

applicant's separation from her baby as a result, and in the

circumstances, of her Category A security status during her pre-trial

detention in prison raise complex and serious issues under the

Convention which require determination on the merits. It follows that

these complaints of the applicant cannot be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) and

no other ground for declaring them inadmissible has been established.

3.   The applicant further complains under Article 5 para. 4

(Art. 5-4) submitting that she was denied an opportunity to take

proceedings by which the lawfulness of her detention could be decided

speedily by a court. She refers to her initial detention and to her re-

arrest on 12 April 1995. She also invokes Article 5 para. 5 (Art. 5-5)

of the Convention in this respect. Article 5 paras. 4 and 5

(Art. 5-4, 5-5) read as follows:

     "4.  Everyone who is deprived of his liberty by arrest or

     detention shall be entitled to take proceedings by which the

     lawfulness of his detention shall be decided speedily by a court

     and his release ordered if the detention is not lawful.

     5.  Everyone who has been the victim of arrest or detention in

     contravention of the provisions of this Article shall have an

     enforceable right to compensation."

     The Government submit that her reference to and complaint under

Article 5 para. 4 (Art. 5-4) is misconceived - following each of her

arrests the applicant was taken before the Magistrates' Court and bail

was considered and refused. If the applicant was dissatisfied with

those decisions, she could have appealed to the Crown Court or to the

High Court but she did not. If the applicant considered that she was

being unlawfully detained, she could have but did not apply for a writ

of habeas corpus. If she is suggesting that her arrest was unlawful in

domestic terms, a remedy of false imprisonment was available to her.

Accordingly, her complaint under Article 5 para. 5 (Art. 5-5) is also

mis-conceived.

     The Commission recalls, in the first place, that the applicant

was legally represented throughout her period of detention and does not

complain about the level of contact with and access to that

representative. She was brought before the Magistrates' Court promptly

after arrest and regularly during detention. Insofar as her complaint

refers to the alleged unlawfulness in domestic terms of her detention,

the Commission recalls that habeas corpus proceedings together with an

action for damages for false imprisonment were available to the

applicant. Insofar as the applicant complains about the unlawfulness

in Convention terms of her detention (Eur. Court HR, X v. the United

Kingdom judgment of 5 November 1981, Series A no. 46, p. 25, para. 57),

she does not specify in what respect she considered her detention

unlawful in Convention terms. Accordingly, the Commission considers

that the applicant has not demonstrated that she was denied the

opportunity to contest the lawfulness of her detention and that her

complaint under Article 5 para. 4 (Art. 5-4) is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     Since the right to compensation under Article 5 para. 5

(Art. 5-5) presupposes a violation of one of the other paragraphs of

Article 5 (Art. 5) (No. 10801/84, Dec. 3.10.88, D.R. 61, p. 62), the

complaint under Article 5 para. 5 (Art. 5-5) must also be declared

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4.   The applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention that her Category A status violated her

right to be presumed innocent until proven guilty of the charges

against her upon which she had yet to be tried. Article 6 para. 2

(Art. 6-2) reads as follows:

     "2.  Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law."

     The Government submit that the categorisation of a prisoner has

no impact on the trial with which Article 6 para. 2 (Art. 6-2) is

concerned (No. 8582/79, Stroogström v. Sweden, Dec. 11.10.82, Comm.

Report 15.7.83, Appendix II)). It is simply an administrative

arrangement which determines the level of security for a prisoner.

     The Commission recalls that the Convention is not opposed to

preventative measures, Article 5 (Art. 5) of the Convention itself

authorising pre-trial detention. Article 6 para. 2 (Art. 6-2) of the

Convention does not in principle prevent the Contracting States from

taking measures against accused persons such as house arrest or

confiscation of certain property (No. 19106/91, Dec. 29.6.94, D.R. 78-

B, p. 83 at p. 86). Article 6 para. 2 (Art. 6-2) does not prevent the

making of orders - for example, confiscation orders - ancillary to pre-

trial detention (No. 12386/86, Dec. 15.4.91, D.R. 70, p. 59). The

Commission also recalls that Article 6 para. 2 (Art. 6-2) of the

Convention does not prohibit treatment of an accused which implies no

more than his treatment as a "suspect" (No. 8582/79, loc. cit.).

     The Commission notes the escape risk referred to in the custody

transfer form completed by Battersea police, the procedure for

according provisional security status outlined in the Prison Service

Security Manual (which the Court of Appeal confirmed had been

observed), the reasons given in the Secretary of State's letter of

20 January 1995 for the subsequent confirmation of her Category A

status together with the findings of the Court of Appeal in the

judicial review proceedings. The Commission considers that the

applicant's designation as a Category A prisoner constituted a

preventative security measure ancillary to pre-trial detention based

on the authorities' assessment of the risk of escape arising out of the

serious nature of the charge against her. This treatment of the

applicant as a suspect to whom strict security measures applied due to

the nature of and circumstances surrounding the charges is not,

therefore, incompatible with the requirements of the presumption of

innocence contained in Article 6 para. 2 (Art. 6-2) of the Convention.

     Accordingly, the Commission considers that this complaint of the

applicant is manifestly ill-founded and inadmissible pursuant to

Article 27 para. 2 (Art. 27-2) of the Convention.

5.   Finally, the applicant refers, for the first time in her

observations, to Article 13 (Art. 13) of the Convention submitting that

she had no effective domestic remedy to challenge her separation from

her baby. The Commission considers that Article 13 (Art. 13) is raised

in conjunction with her complaints about her separation from her baby

under Articles 3 and 8 (Art. 3, 8) of the Convention.

     However, the Commission also considers that this complaint has

been introduced with her observations dated 7 January 1998.

Accordingly, and even assuming that the six-month time-limit outlined

in Article 26 (Art. 26) of the Convention began to run on 20 April 1995

(being the latest date of the relevant period of detention), this

complaint was introduced outside of the afore-mentioned six-month time-

limit. The complaint is, therefore, inadmissible pursuant to Article

27 para. 3 (Art. 27-3) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the

     applicant's complaints about her separation from her baby during

     her pre-trial detention in Holloway prison; and

     DECLARES INADMISSIBLE the remainder of the application.

       M.F. BUQUICCHIO                           M. PELLONPÄÄ

          Secretary                               President

     to the First Chamber                    of the First Chamber